CASE OF VENIAMIN TYMOSHENKO AND OTHERS v. UKRAINE

Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

At the material time the applicants were employed by the CJSC “AeroSvit Airlines” (“AeroSvit”) as aircraft cabin crew.

As confirmed, in particular, by the minutes of the trade union’s constituent assembly of 2 July 2003, all the applicants were members of the company’s trade union. Mr Tymoshenko was its chairman.

On 16 February 2011 the National Mediation and Reconciliation Service (“the NMRS”) registered a collective labour dispute between the employees and the management of AeroSvit. The employees’ demands concerned, in particular, the following issues:

repairs to the aircraft electronic catering and air-conditioning equipment;

enhancing the safety of on-flight technical processes;

salary payments to be made no later than three days before a period of leave;

full and timely salary payments twice per month;

a 3% pay rise and recalculation of salaries for 2009 and 2010;

salary payment on the basis of the exchange rate of the US dollar and the Ukrainian hryvnia as established by the National Bank of Ukraine, with salaries to be recalculated from 2008;

recalculation of long-service bonuses;

ensuring transportation of aircraft cabin crew to and from the airport;

establishing a USD 50 per diem allowance for all foreign flights;

uniform cleaning and ironing to be at the employer’s expense;

allocation of at least 0.3% of the salary budget for cultural and sporting events;

awarding employees a bonus of 3.23% from the 2008 profits; and

inflation adjustment of salaries if payment was delayed, with effect from December 2008.

On 16 March and 12 April 2011 the NMRS deregistered some of the employees’ demands, noting that they had been resolved, with reference to decisions of the reconciliation commissions of 28 February, 10 and 30 March 2011.

On 27 May 2011 the NMRS Labour Arbitration Court delivered its decision on the employees’ remaining demands, following a hearing in which representatives of both parties participated. It found most of the demands to be legitimate and directed the employer to comply with them.

In the absence of any compliance measures, AeroSvit cabin crew, including the applicants, decided to embark on industrial action.

On 9 September 2011 the general meeting of AeroSvit employees, seeking resolution of the labour dispute, announced a strike of 150 aircraft cabin crew members. The strike was due to start on 28 September 2011 and continue until the employees’ demands were fully met. The announcement specified that all foreign flights which began prior to the beginning of the strike would be completed. The meeting appointed a strike committee of six persons (including all of the applicants except Mr Pushnyak, who, however, attended the meeting and voted in favour of the strike). The committee was vested with the following powers: to conduct negotiations on behalf of the employees with the company’s management and State authorities; to draw attention to the strike in the mass media; to receive information from the company’s management on compliance with the employees’ requirements; to initiate and participate in a reconciliation commission; to organise and conduct meetings and pickets in support of the demands put forward; to sign agreements with the owner or an authorised representative on resolution of the labour dispute; and to consult the NMRS.

By 12 September 2011 the strike committee had notified the following authorities about the decision to hold a strike: the employer, the NMRS, the Infrastructure Ministry, the State Aviation Administration, the Social Policy Ministry, the State Labour Inspection, the Parliamentary Ombudsman, as well as a number of other institutions and organisations.

On 19 September 2011 the management of AeroSvit lodged a claim with the Darnytskyy District Court of Kyiv (“the Darnytskyy Court”) against the flight attendants’ trade union, seeking to have the strike declared unlawful.

On 26 September 2011 the Darnytskyy Court held the first hearing on the case. Another hearing was scheduled for the morning of 28 September 2011.

The planned hearing did not take place for reasons unknown to the applicants. They later discovered that the judge had been on sick leave.

On 28 September 2011 the management of AeroSvit Airlines brought another claim, this time before the Boryspil City Court (“the Boryspil Court”) and against the strike committee, seeking to have the strike declared unlawful.

On 29 September 2011 the Boryspil Court, in written proceedings, issued an injunction prohibiting the strike committee from holding the strike pending adjudication of the employer’s claim.

On the same day AeroSvit’s management handed over a copy of the injunction to the trade union’s representatives.

On 30 September 2011 the company’s management withdrew its earlier claim from the Darnytskyy Court.

On 4 October 2011 the trade union challenged the Boryspil Court’s injunction of 29 September 2011 before the Kyiv Regional Court of Appeal (“the Court of Appeal”). It submitted, in particular, that the strike committee could not be a respondent in proceedings, since it was neither an individual nor a legal entity. Nor was it empowered to act in courts on behalf of the employees who had decided to go on strike.

On 5 October 2011 the Court of Appeal dismissed the aforementioned appeal.

On 6 October 2011 the Boryspil Court found that the strike would be unlawful and banned it. The court relied on section 18 of the Transport Act, which prohibited strikes at transport enterprises if they affected passenger carriage. It noted that AeroSvit was an important passenger carrier operating over eighty international routes to thirty-three counties. Furthermore, given that one of the major tasks of the aircraft cabin crew was to ensure the safety of passengers, the court considered applicable section 24 of the Resolution of Labour Disputes Act, which prohibited strikes if they were likely to endanger human life or health. It also made a general reference to Article 44 of the Constitution.

The trade union appealed. It reiterated the arguments of its earlier appeal of 4 October 2011 concerning the standing of the strike committee. It also argued that the first-instance court had wrongly applied the Transport Act, when it should instead have applied the Resolution of Labour Disputes Act.

On 22 November and 19 December 2011 respectively the Kyiv Regional Court of Appeal and the Higher Specialised Court for Civil and Criminal Matters upheld the judgment of 6 October 2011.

On 20 January 2012 the Specialised Court’s final ruling was served on the strike committee.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in 1966 and 1976 respectively.

At the material time, the first applicant, Mr Fevzi Saygılı, was the owner of a daily newspaper, Yeni Evrensel. The second applicant, Mr Ali Karataş, was the editor-in-chief of the newspaper.

On 8 January 2000 an article entitled “Friends, I surely have to watch [it]” (“Ben mutlaka izlemeliyim arkadaşlar”) written by Fatih Polat was published on page two of Yeni Evrensel’s 472nd issue. It concerned a case that had caused a public outcry in Turkey, namely that of Metin Göktepe, a journalist who was beaten to death by the police whilst under arrest in 1996. Following the killing, the Turkish Grand National Assembly set up a Parliamentary Inquiry Commission in order to shed light on the murder of Metin Göktepe. On 19 July 1996 the Commission published its report which contained, among other things, the names, the functions and the statements of numerous police officers, including O.T. and K.B.

The above-mentioned article read as follows:

“This is what Metin said [I surely have to watch [it]] to colleagues who were making their final preparations to observe the funerals of Rıza Boybaş and Orhan Özen – two revolutionary detainees who had been killed in Ümraniye Prison four days earlier – when he arrived at the newspaper office on 8 January 1996. This was an expression of his commitment and involvement in life with a great enthusiasm, which went beyond the mere love of his job.

The difference between doing this job [journalism] reluctantly and doing it wholeheartedly and flawlessly was apparent in his effort to report events fully, notwithstanding the hindrances created by the police at Alibeyköy, where he went on the day of the events.

Unlike his colleagues, he perceived pushing against the police barricade as the means to reach the news behind that barricade. What else was journalism for?

The barricade that stands in front of the reality that the people of Turkey need stands in front of the journalist sometimes officially, sometimes unofficially and sometimes in the form of a gang. However, when that barricade is broken down, a dark bottomless well filled with the danger of “being eliminated” − to use the expression of the official Susurluk Report − is waiting in front of you to swallow you up. In the last ten years alone, fifty-one journalists have been swallowed up by this well. The important message behind this is that we need determination to go beyond the darkness and reach the light. Or, to put it a different way, it is not possible to reach the light from the darkness without eliminating the eliminators (Ya da, başka bir deyişle, “bertaraf ediciler”, “bertaraf” edilmeden karanlıktan sürekli aydınlığa çıkmak da mümkün değil). Following Metin’s death, the honest journalists of Turkey, especially the young ones, thought that waiting to confront that reality was a hopeless prospect. Indeed, they thought that it was already too late. It was also like this for the country’s working class who constantly encountered the police in their struggle to seek legal solutions. Moreover, Metin was one of them. This consciousness became the driving force behind the transformation of every hearing of his trial − which was “exiled”, first to Aydın then to Afyon Province, with the aim of keeping it hidden from public view − into a demonstration.

We have learnt that the murderers will be tried, and we are duty-bound to ensure the effective continuation of such proceedings. This has been the only trial involving a journalist in which the murderers were punished notwithstanding the public authorities’ reluctance − which has taught us all that democracy is won not by waiting for it to appear from some place but by standing up for it. And above all, assuming that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever would represent nothing but a lack of faith in all these struggles (Metin’in ölümüyle sonuçlanan toplu gözaltı emrini veren dönemin İstanbul Emniyet Müdürü O.T. ile bu emri uygulayan yardımcısı K.B.’ın üzerindeki koruma halesinin sonsuza kadar öyle kalacağını düşünmek ise, herşeyden önce verilen onca mücadeleye karşı bir inançsızlık olur). All those following the case of Metin Göktepe will not stop coming after T. and B., who were already guilty in people’s minds (Metin Göktepe davasının takipçisi olanlar, halkın vicdanında çoktan mahkum olan T. ve B.’ın peşini elbette bırakmayacaklar).

The fact that the eliminators dragged one more name into their dark well after Metin’s, namely that of Ahmet Taner Kışlalı, has shown another reality. Absolute protection from this fate requires constant and persistent monitoring. Is not one of the reasons why we are entering the third millennium with unsolved journalist murders the fact that those who occupy the seat and write the column of Çetin Emeç at Hürriyet, and those who occupy the seat and write the column of Abdi İpekçi at Milliyet, and also the newspaper of the journalist İzzet Kezer, did not make it their business to reveal the murderers and all those responsible in the first place?

Is there any solution other than coming after the “eliminators”, whilst “surely watching”, and removing them and their collaborators completely from our soil, in order to save ourselves from becoming a country in which gangs can behave as they please?”

On 18 January 2000 the prosecutor at the Istanbul State Security Court filed a bill of indictment with that court and charged the applicants with offences defined in Section 6 § 1 of the Prevention of Terrorism Act (Law no. 3713), namely disclosing the identities of public officials who are involved in the fight against terrorism, thereby rendering such persons targets for terrorist organisations. In addition, he called for the application of Additional section 2 of the Press Act (Law no. 5680) and Article 36 of the former Criminal Code.

In a petition dated 17 May 2000 the applicants’ lawyer argued in their defence submissions that the crime of disclosing the identities of public officials who are involved in the fight against terrorism is not committed merely by using the officials’ names in connection with a case in which they have been tried as accused. The applicants’ lawyer maintained that the persons were already known to the public due to their positions and that their names were already in the public domain. He further contended that the applicants’ trial before the State Security Court was in contravention of Articles 6 and 10 of the Convention.

On 21 June 2000 the Istanbul State Security Court convicted the applicants as charged and sentenced them to heavy fines, of 474,481,000 Turkish liras (TRL) (approximately 804 euros (EUR) at the relevant time) and TRL 237,240,000 (approximately EUR 402) respectively. In accordance with Additional section 2 § 1 of Law no. 5680, the first-instance court also ordered the temporary closure of the newspaper for a period of seven days. According to the brief reasons given by the Istanbul State Security Court, the following sentences from the article were sufficient to conclude that O.T. and K.B. had been rendered targets for terrorist organisations:

“... it is not possible to reach the light from the darkness without eliminating the eliminators ... And above all, supposing that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever would represent nothing but a lack of faith in all these struggles. All those following the case of Metin Göktepe will not stop coming after T. and B., who were already guilty in people’s minds.”

On the same day, the applicants lodged an appeal. They stated first of all that the article in question had been written on the fourth anniversary of the killing of journalist Metin Göktepe, who had been beaten to death by the police in 1996 whilst in custody. The applicants argued that the purpose of the article had been to raise concern over the fact that some high-ranking officials had not been tried and that those accused in Metin Göktepe’s trial had still not been convicted, four years after the death of Metin Göktepe. The applicants maintained in this respect that the two officials concerned, namely O.T. and K.B., were the ones who had given and executed the detention order which had resulted in Metin Göktepe’s death. The applicants also pointed out that these two officials had been the only ones in respect of whom the requests for authorisation to prosecute under Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) had been rejected by the Interior Minister at the material time. The names of the two officials had therefore been mentioned in the article because of their involvement in the abovementioned events and not because of their role in the fight against terrorism. The applicants further submitted that the names of the officials had already appeared in the public domain and that the officials, being the Director and the Vice-Director of Istanbul Security Directorate, were already known to the public and thus not in a position to complain about the disclosure of their identities.

As regards the content of the article, the applicants observed that the writer of the article had defended the rule of law and the notion of justice and had not incited people to violence or advocated terrorism. According to the applicants, the article constituted a critical assessment of Metin Göktepe’s trial and of the impunity of some high-ranking officials, as well as the challenges journalists were facing.

The applicants emphasised that the sentence “And above all, assuming that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever, would represent nothing but a lack of faith in all these struggles” had been a reference to the fact that no permission had been given under Law no. 4483 to authorise the prosecution of the two officials in question for their alleged criminal conduct in connection with the events surrounding Metin Göktepe’s death.

They observed that, with the sentence “...it is not possible to reach the light from the darkness without eliminating the eliminators” the writer of the article had highlighted the challenges faced by journalists in their struggle to seek justice. This being so, they argued that it was untenable to conclude that the writer had in any way suggested the physical elimination of the two officials.

Lastly, they asserted that with the expression “coming after” the writer had obviously referred to the aftermath of Metin Göktepe’s trial which contributed significantly to the punishment of the accused police officers. According to the applicants, the writer had wished the cases against the two officials to be followed up by the people of Turkey with a view to bringing these officials to justice.

In their appeal application, the applicants requested that the Court of Cassation hold a hearing.

They also complained about the application of Additional section 2 § 1 of Law no. 5680.

On 1 February 2001 the Court of Cassation rejected the request for a hearing and upheld the judgment.

The closure order for the newspaper was executed from 20 to 27 March 2001.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1951 and lived, prior to his arrest, in Irkutsk.

On 14 May 2008 the applicant was arrested. On an unspecified date he was charged with three counts of pimping and pandering, extortion and illegal keeping of firearms. The court remanded him in custody.

On 5 March 2009 he was committed for trial before the Oktyabrskiy District Court of Irkutsk.

On 3 August 2009 the District Court extended his pre-trial detention ’s arrest, he was accused of a serious crime, did not live at his domicile, hence he could abscond, threaten witnesses and interfere with the investigation.

On 26 November 2009 and 2 March 2010 the District Court extended the applicant’s pre-trial detention referring to the above grounds and stating that the victims of his crimes were minors. The court also took into account the applicant’s character, his state of health and age.

The applicant’s appeals against the detention orders were rejected.

On 29 March 2010 the District Court convicted him as charged.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6+13 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 13 - Right to an effective remedy;Effective remedy)

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

The applicant was born in 1975 and lives in Asvag (Norway).

In 2000 the applicant married a Slovak national (A.) in Norway. There were two children from the marriage, born in 2000 and 2002 respectively.

The family lived together in Norway until May 2004, when the applicant left the family home. On 18 August 2004 an administrative decision was taken in Norway on the couple’s separation.

On 7 September 2004 the Vesterålen District Court (tingrett) issued an interim order that, until the resolution of the matter on the merits, the children should be the joint responsibility of both parents and should remain in the care of A. The court also determined the applicant’s visiting rights and forbade both parents to remove the children from the Norwegian territory without the consent of the other parent.

Nevertheless, on 8 July 2005 A. left Norway for Slovakia, taking the children with her.

On 21 September 2005 the Vesterålen District Court ruled that the children be put under the exclusive parental responsibility and in the care of the applicant. It also determined the visiting rights of A. and issued an order that she should not remove the children from the territory of Norway. This judgment was upheld by the Hålogaland High Court (lagmannsrett) on 10 March 2006 following an appeal by A., and her request for leave to appeal on points of law was dismissed by the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) on 23 May 2006.

On 14 December 2005 the applicant initiated proceedings in Slovakia against A. under the Hague Convention, seeking an order for the return of the children to their country of habitual residence ‒ Norway.

The action was examined by the courts in four rounds, two of which were followed by enforcement proceedings. They are described below in turn.

The first examination resulted in the dismissal of the action by the Liptovský Mikuláš District Court (Okresný súd) on 23 May 2006 and of the applicant’s appeal (odvolanie) by the Žilina Regional Court (Krajský súd) on 28 February 2007. These decisions became final and binding (právoplatnosť).

The applicant subsequently petitioned the Prosecutor General (“the PG”) to exercise his discretionary power to challenge these decisions by way of an extraordinary appeal on points of law (mimoriadne dovolanie) on the applicant’s behalf. However, in a letter of 25 October 2007 he was informed that, under the applicable procedural rules, no such extraordinary appeals were available in family law matters.

Meanwhile, on 30 May 2007, the applicant had challenged the ordinary courts’ decisions by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

Upon examining this complaint, on 12 June 2008, the Constitutional Court (Ustavný súd) found a violation of the applicant’s rights under Article 6 § 1 (fairness), but no separate issue under Article 8 of the Convention.

As a result, it quashed the decision of 28 February 2007 and remitted the matter to the Regional Court for reexamination of the applicant’s appeal against the decision of 23 May 2006.

In consequence, on 7 October 2008 the Regional Court re-examined the appeal and decided to quash the decision of 23 May 2006 and to remit the case to the first-instance court for reexamination.

In the second round of examination, an order for the return of the children was issued by the District Court on 16 April 2009 and, following an appeal by A., it was upheld by the Regional Court on 23 June 2009.

As the order thereby became final and binding, on 13 August 2009 the applicant petitioned for enforcement.

However, the return order was quashed by the Supreme Court (Najvyšší súd) on 7 September 2010, following an appeal on points of law (dovolanie) by A. The matter was consequently remitted to the District Court for a fresh examination and, on 30 September 2010, the enforcement proceedings were discontinued.

In the third round of examination, a new order for the return of the children was issued by the District Court on 22 October 2010 and, following an appeal by A., it was upheld by the Regional Court on 25 January 2011.

The order thus became final and binding and, on 24 February 2011, the applicant petitioned for enforcement.

However, the return order was again quashed by the Supreme Court, on 27 July 2011, following an extraordinary appeal on points of law lodged by the PG on behalf of A.

Among other things, the Supreme Court observed that the courts were duty-bound to examine as carefully as possible the overall situation to which the children would return in the place of their habitual residence.

On the facts of the present case, the lower courts had based their assessment regarding the social situation of the applicant on reports drawn up by the Norwegian Central Authority responsible for implementing the Hague Convention. However, these reports dated back to February and April 2009 and, in the circumstances, they were outdated. For this reason and others, the matter was again remitted to the District Court for a fresh examination and the enforcement proceedings were terminated.

The fourth and final round of examination resulted in the dismissal of the applicant’s petition by the District Court on 21 November 2011. This decision was appealed against by the applicant and the public prosecution service, who had previously joined the proceedings but later withdrew their appeal.

On 8 February 2012 the Regional Court discontinued the proceedings in respect of the appeal by the public prosecution service and declared the applicant’s appeal inadmissible for being out of time.

On 20 February 2012 the Regional Court corrected its decision of 8 February 2012 in so far as the applicant’s appeal was concerned. In particular, having established an error in its previous calculation of the applicable statutory time-limit, the Regional Court ruled that the applicant’s appeal had in fact been lodged in good time and that the proceedings on it were to continue. A. then challenged this decision by means of an appeal on points of law, but her appeal was rejected by the Supreme Court on 28 June 2012 as being inadmissible.

The Regional Court heard the applicant’s appeal on 22 October 2012 and dismissed it on 6 November 2012.

In dismissing the petition and the appeal, the courts relied on the Supreme Court’s judgment of 27 July 2011 (see paragraph 21 above) and took into account the fact that the children wished to stay with A. in Slovakia, that they had spent more than half of their lives in Slovakia, and that they were integrated there. The courts concluded that it was therefore in the best interests of the children that they should not be returned to Norway.

The matter was settled by force of a final and binding decision on 31 December 2012.

Meanwhile, on 3 September 2012 the applicant had turned to the Constitutional Court with a fresh individual complaint. Directing it against the District Court, the Regional Court, and the Supreme Court, he alleged a violation of his rights under Articles 6 (fairness and length) and 8 of the Convention and their constitutional equivalents.

In particular, the applicant contended that the proceedings had been pending for nearly seven years, and that in the given situation the excessive length thereof worked against him.

In addition, he argued that the District Court’s decision of 21 November 2011 violated his right to respect for his private life and, challenging in substance mainly the Supreme Court’s decision of 27 July 2011, he asserted that the proceedings had been unfair inter alia because the PG had lodged an extraordinary appeal on points of law on behalf of A., although such a remedy had been denied to the applicant on the grounds that it was not available as a matter of law (see paragraphs 14 and 21 above).

On 30 October 2012 the Constitutional Court declared the complaint inadmissible.

At the time of the Constitutional Court’s decision, the applicant’s Hague Convention petition was still pending before the Regional Court on his appeal against the first-instance ruling of 21 November 2011 in the fourth round of examination (see paragraphs 22 et seq. above), after the second final and binding return order had been quashed by the Supreme Court on 27 July 2011 following an extraordinary appeal on points of law lodged by the PG on behalf of A. (see paragraph 21 above).

As regards the length of the proceedings, the Constitutional Court observed that the Supreme Court and the District Court had determined the matter on 27 July and 21 November 2011 respectively. Therefore, at the time the constitutional complaint was introduced, these courts were no longer dealing with the case. Examination of the length of the proceedings before these courts could thus no longer aid their acceleration and, consequently, the applicant could not be deemed to have the requisite interest in having it examined. In addition, the length of the proceedings before the Regional Court being relatively short, the remainder of the length-of-proceedings complaint was manifestly ill-founded.

In so far as the constitutional complaint concerned the Supreme Court’s decision of 27 July 2011, it had evidently been lodged outside the statutory two-month time-limit and, as the proceedings on the applicant’s appeal against the decision of 21 November 2011 were still pending, any complaint in relation to their outcome was premature.

The decision was served on the applicant’s lawyer on 4 December 2012.


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms Danuta Szwed-Wójtowicz, is a Polish national, who was born in 1949 and lives in Łódź. She was represented before the Court by Ms A. Podciechowska, a lawyer practising in Łódź.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

On 1 February 1995 a prosecutor of the District Prosecutor’s Office in Łódź held a press conference and informed the public that company A., of which the applicant owned 90 per cent of shares, had been issuing shortterm obligations without a necessary licence to run a bank-like operations.

On 6 April 1995 the prosecutor charged the applicant with offences of running bank-like operations without licence and of issuing obligations without permission by the Securities Commission (Komisja Papierów Wartościowych).

On 5 February 1998 a bill of indictment against the applicant was lodged with the Łódź District Court. The applicant was accused of six various offences connected with the running a company conducting banklike activities without necessary licences. Another bill of indictment, concerning further similar charges, was lodged with the same court on 26 March 1998. The Łódź District Court examined the cases jointly.

By a judgment of 27 June 2006 the applicant was acquitted of two charges and convicted of two other charges of fraud. She was sentenced to five years and six months’ imprisonment. The applicant appealed.

On 26 November 2007 the Łódź Regional Court dismissed her appeal.

The applicant lodged a cassation appeal with the Supreme Court. On 6 March 2009 the Supreme Court held a hearing and dismissed the applicant’s appeal, finding that it was manifestly illfounded. Having heard the parties, the court gave orally brief grounds for its decision.

The copy of the decision contained information that under Article 535 § 2 of the Code of Criminal Procedure no written grounds for that decision shall be prepared.

In 1995 the applicant had a stroke (udar niedokrwienny mózgu). Subsequently, she was diagnosed with chronic insufficiency of brain blood vessels (przewlekła niewydolność naczyń mózgowych) resulting in multiple brain strokes with successive left-side paresis (udar mózgu z niedowładem lewostronnym), narrowing of carotid arteries (zwężenie tętnic szyjnych) as a result of arteriosclerosis (miażdżyca), chronic pancreatitis (przewlekłe zapalenie trzustki), degenerative vertebral alterations of the pectoral and lumbar part (zmiany zwyrodnieniowe kręgosłupa w odcinku piersiowym i lędźwiowym), widening of abdominal aorta with mural thrombus (poszerzenie aorty brzusznej ze skrzepliną przyścienną), hypertension and depressive disorders.

Since 1995 the applicant has been treated in hospital several times. For the last time before her detention she was hospitalised between 22 and 28 April 2010. She was admitted to hospital because of severe abdominal pain. She was discharged with a recommendation to remain under the medical care of an internist, gastroenterologist, vascular surgeon and psychologist. She was also advised to follow a special diet and to regularly take medication.

On 22 June 2009 the Disability Board gave a decision, attesting that the applicant was suffering from significant disability (niepełnosprawność stopnia znacznego). This decision was granted for a period until 30 June 2012.

On 5 November 2010 the applicant was arrested and taken to the Łódź Prison no. 1 in order to serve her sentence of imprisonment. She was detained in that establishment until 14 December 2010. On the later date she was transferred to the Grudziądz Prison no. 1 where she remained until 15 February 2011. On 16 February 2011 the applicant was transferred to the Łódź Prison no. 1.

On the date of her admission to prison, the applicant was examined by a prison doctor, a psychiatrist and a cardiologist. A prison doctor recommended a course of medication and a light diet. He also advised that the applicant be provided with a lower bed in a cell. Moreover, a cardiologist stated that the applicant did not need to be detained in a prison hospital.

On 6 November 2010 the applicant was examined by a neurologist and subsequently on 9 and 15 November 2010 by an internist.

On 13, 14, 15 and 16 December 2010 the applicant had further medical consultations. On 21 December 2010 she had appointment with a psychiatrist and on 27 December 2010 she was examined by a prison doctor. On 12 January 2011 she was consulted by an internist, on 17 January by a dermatologist and on 18 January by a surgeon. On 19 January 2011 she had blood tests and abdominal ultrasonography. On 26 January 2011 she was again consulted by an internist.

On 3 February 2011 a prison doctor certified that the applicant could be treated in prison.

On 10 February 2011 she had consultation with a neurologist and on 14 February 2011 with an internist. On 23 February 2011 she underwent laboratory tests. She had further medical appointments on 28 February 2011; 7, 8, 18 and 22 March (private consultation with a vascular surgeon); 23 and 31 March; 7 April; 4, 9 and 23 May 2011. On 2 and 30 March 2011 she had blood tests.

On 9 May 2011 a prison doctor opined that the applicant might be treated in the conditions of detention. On the same day she underwent Doppler ultrasonography of carotid and vertebral arteries. She had further medical consultations on 7, 20 and 21 June 2011. On 1 July 2011 she underwent electroencephalography (EEG).

On 22 July 2011 she was consulted by a prison doctor. On 8 August 2011 the prison doctor decided to maintain the same pharmacological treatment for the applicant.

On 9 August 2011 the applicant had a computed tomography (CT) of the head. On 19 September 2011 she had neurological and on 5 January 2012 gastrological consultations.

On 21 September 2011 a prison doctor ascertained that the applicant may be treated in prison.

On 12 October 2011 the applicant had blood tests. On 19 October 2011 she was examined by a prison doctor. On 20 October 2011 she underwent a computed tomography of her chest.

On 27 October and 4 November 2011 the applicant had bacteriological tests. On 21 November she underwent abdominal ultrasonography.

On 6 and 22 December 2011 she was consulted by a pulmonologist and a prison doctor respectively.

On 10 January 2012 a prison doctor, after conducting psychiatric and gastrological consultations (on 2 and 5 January 2012 respectively), issued a medical certificate on the applicant’s condition for the purposes of the judicial proceedings concerning the applicant’s request for temporary release (see paragraphs 33-38 below). The certificate stated that the applicant could be treated in prison.

On 30 and 31 January 2012 the applicant was taken for one-day observation in the hospital of the Łódź Prison no. 2 after having fainted in the court. She stayed under cardiological surveillance and had neurological consultation. Moreover, she had blood tests, electrocardiography (ECG) and CT of the head. The CT of the head indicated no fresh blood incidents in the central nervous system. After those examinations doctors concluded that the applicant could remain in prison and that there was no need for further hospitalisation. They noticed that the applicant exaggerated her condition.

On 3 and 7 February 2012 the applicant was consulted by a psychiatrist and in internist respectively who recommend the continuation of the previous pharmacological treatment.

On 19 March 2012 the applicant underwent abdominal CT. On 28 March 2012 she had blood tests. Those examinations indicated the presence of gallstones in bile duct. Having regard to those results, on 11 April 2012 a prison doctor referred the applicant to a surgeon. The consultation took place on the same day. Subsequently, the applicant was consulted by an internist on 16 April, 7 May and 3 and 16 July 2012.

Since the beginning of her detention the applicant has been receiving light diet.

The Government submitted that according to the information provided by the Director of the Medical Service of the Łódź Prison no. 1, the applicant was able to move around independently. She did not need help from third parties. She never reported to the prison authorities that she needed assistance in her basic daily activities. She has been constantly receiving pharmacological treatment.

On 29 November 2010 the applicant requested to be granted temporary release (przerwa w karze). She referred to her numerous ailments and the need to have them treated properly which, in her submission, was impossible in prison, in particular in respect of her persistent neurological condition resulting from repeated strokes. In February 2011 the applicant repeated her request.

On 16 June 2011 the Łódź Regional Court refused to allow the applicant’s request. It was of the view that the grounds for allowing a temporary release, provided for by Article 153 § 2 of the Code of Execution of Sentences, did not obtain in the case. On the basis of two certificates issued by doctors working for the prison medical service, the court found that despite being of fragile state of health, the applicant had appropriate medical care in detention. In particular, she was consulted by various specialists and underwent necessary examinations. Both certificates stated that the applicant was fit for detention. The court stressed that the applicant remained under constant medical care. Importantly, the court noted that the applicant was not entirely interested in improving her state of health as on several occasions she had been disciplinary punished for storing medication and for refusing to take it in the presence of a nurse.

The applicant appealed. She argued, inter alia, that the Regional Court had erred in the establishment of facts. In this respect, she contested the lower court’s finding that the applicant was fit for detention despite her numerous ailments. She also complained about the Regional Court’s reliance on the opinions of prison doctors and its refusal to admit expert opinions relevant for the applicant’s condition.

On 31 August 2011 the Łódź Court of Appeal quashed the Regional Court’s decision and remitted the case. It concurred with the lower court that the applicant’s state of health was under constant monitoring and that she had access to specialised treatment in detention. However, given the character of the applicant’s ailments, her state of health needed to be also assessed by relevant specialists, in particular, a neurologist and a gastroenterologist. The medical opinions relied on by the Regional Court did not contain this kind of assessment.

In its decision of 24 February 2012 the Łódź Regional Court refused to grant the applicant a temporary release. It was of the view that the applicant’s condition could be treated in detention, having regard to a medical certificate of 10 January 2012 (see paragraph 27 above). It noted that the applicant received necessary medical care, including consultations by specialists. The applicant’s medical documentation did not substantiate a conclusion that her continued detention would seriously endanger her life or health.

The applicant appealed. The Łódź Court of Appeal dismissed her appeal on 24 April 2012. It shared the conclusions of the lower court as to the applicant’s state of health and her being fit for detention. The appellate court stressed that it transpired from the medical opinion of 10 January 2012 that the applicant had been examined not only by general practitioners but also by specialists in surgery, psychiatry, neurology and gastroenterology. The opinions of the specialists confirmed that the applicant could be treated in detention. The Court of Appeal also noted that further examinations and consultations had been planned which indicated that the applicant received adequate medical care.

It appears that the applicant was released on an unspecified date in 2014.

The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010).


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev

The applicant was born in 1967 and lives in Düren.

On 27 August 2010 the Krefeld District Court issued a warrant for his arrest as there was a strong suspicion that he had been trafficking drugs. Earlier that day he had been stopped with 15.8 grams of heroin, which he had allegedly intended to sell. On two previous occasions he had been stopped at the German border with 11 and 12.5 grams of heroin on him. The arrest warrant was based on the risk of him absconding as he could expect a considerable sentence for the offences in question, had no social ties, being unemployed and a drug addict, and had an unstable character. That same day he was detained on remand.

Between 30 August 2010 and 11 November 2010 the lawfulness of the applicant’s detention on remand was examined eight times by the District Court or Regional Court.

In a judgment of 6 December 2010 the District Court convicted the applicant of three counts of large-scale drug trafficking – two counts of smuggling drugs into Germany and trafficking (dealt with as a single offence instead of two separate offences) and a third count of trafficking only and sentenced him to two years and six months’ imprisonment. On the same day, in a separate decision, the District Court ordered the continuation of the applicant’s detention.

On 8 December 2010 the applicant lodged an appeal against that decision. In substance he mainly referred to his previous submissions. On 13 December 2010 he lodged an appeal against the judgment.

The District Court did not allow the appeal of 8 December 2010 relating to the applicant’s detention and referred it to the Regional Court, which dismissed it on 15 December 2010, finding that there continued to be a risk of the applicant absconding.

On 5 January 2011 the applicant lodged a further appeal against that decision. In substance, again, he referred to his previous submissions. He explicitly asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them.

On 28 January 2011 the Düsseldorf Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft – “the prosecution authorities”) submitted written observations to the Court of Appeal, requesting the dismissal of the applicant’s appeal of 5 January 2011.

The applicant’s counsel received the observations from the prosecution authorities on 3 February 2011 and submitted a reply to the Court of Appeal on 10 February 2011.

Following a telephone enquiry to the Court of Appeal, the applicant’s counsel learned on 10 February 2011 that on 3 February 2011 it had already decided the applicant’s appeal of 5 January 2011 and dismissed it. The applicant had therefore not been able to reply to the observations of the prosecution authorities of 28 January 2011 prior to the court taking its decision.

That same day the applicant’s counsel requested a subsequent hearing (Nachholung des rechtlichen Gehörs) under Article 33a of the Code of Criminal Procedure.

On 14 February 2011 the Court of Appeal’s decision of 3 February 2011 was served on the applicant.

On an unspecified date the prosecution authorities submitted written observations in relation to the applicant’s request for a subsequent hearing.

On 25 February 2011 the Court of Appeal dismissed the request for a subsequent hearing as inadmissible, finding that the applicant’s right to be heard had not been violated, that the prosecution authorities’ observations of 28 January 2011 had not contained any facts unknown to him and there had therefore been no need to serve them on him. In so far as his submission of 10 February 2011 was to be classified as an objection (Gegenvorstellung), the court rejected it because its decision of 3 February 2011 had not been based on incorrect factual or procedural considerations. Prior to the decision of 25 February 2011, the observations of the prosecution authorities relating to the request for a subsequent hearing had not been served on the applicant, who had thus had no opportunity to reply to them. The Court of Appeal nevertheless quoted and endorsed those observations in its decision.

On 7 April 2011 the applicant lodged a complaint with the Federal Constitutional Court. He alleged, in particular, that his right to be heard, as guaranteed by Article 103 § 1 of the Basic Law (Grundgesetz), had been violated, because the Court of Appeal had taken its decisions of 3 and 25 February 2011 without giving him the opportunity to reply to the observations of the prosecution authorities.

On 28 July 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (2 BvR 805/11). Its decision was served on him on 10 August 2011.


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

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

The applicant was born in 1972 and lives in Dublin, Ireland.

In 2004 he married a Slovak national and the couple settled in Ireland. Their two children, born in 2006 and 2008, are both Irish nationals.

On 6 January 2011 the mother travelled to Slovakia with the two children and they have not returned to Ireland since.

On 31 January 2011 the applicant commenced proceedings in the Slovakian courts for the return of his children to Ireland under the Brussels II bis Regulation and the Hague Convention.

On 1 July and 26 October 2011 respectively, the Bratislava I District Court and, following an appeal by the mother, the Bratislava Regional Court, ordered the return of the children to Ireland as their country of habitual residence and issued several ancillary orders.

The return order became enforceable on 8 July 2011.

On 6 February 2012 the applicant applied for judicial enforcement of the return order since the mother had not complied with it.

On 9 February 2012 the Michalovce District Court attempted to have the mother comply voluntarily with the order. In response, she informed the District Court that she had lodged a request with the Prosecutor General for him to exercise his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie).

On 26 March 2012 the District Court stayed the enforcement proceedings on the return order pending the outcome of the mother’s request to the Prosecutor General.

On 14 August 2012 the District Court resumed the enforcement proceedings after the Prosecutor General had found that there were no reasons to lodge an extraordinary appeal on points of law.

On 18 October 2012 and 26 June 2013 respectively, the District Court and, following an appeal by the applicant, the Košice Regional Court, found that the return order was not enforceable. They based their conclusions on the following two grounds.

Firstly, they concluded that there already existed a previous decision on provisional measures, which had been delivered by the Michalovce District Court on 16 May 2011. That decision had temporarily entrusted the children to the care of the mother and required the applicant to pay child maintenance in the meantime. Those interim custody rights were to be determined later by the competent courts in Ireland.

Secondly, the return order had failed to specify that it was directed at the mother or to give a precise time frame for its implementation.

Given the fact that the mother had not been identified as the recipient and that the applicant had not been provisionally entrusted with the care of the children, the order could not be enforced.

Following the unsuccessful enforcement proceedings, the applicant applied to the same court which had delivered the return order, the Bratislava I District Court. He referred to the shortcomings in the order as identified by the enforcement courts and asked the court to specify to whom the order had been directed and to provide a time frame for the return of the children. The District Court concluded that the applicant’s action was res iudicata and dismissed it on 6 November 2014.

In the meantime, on 22 October 2013, the applicant challenged the enforcement courts’ decisions of 18 October 2012 and 26 June 2013 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

On 9 July 2014 the Constitutional Court declared the complaint admissible and on 27 May 2015 it found on the merits that the Košice Regional Court had violated the applicant’s rights, as specified below (“the first constitutional judgment”).

In particular, it found a violation of the applicant’s rights under Articles 19 § 1 (family life), 41 §§ 1 and 4 (protection of parenthood and children, right to child care), and 46 § 1 (judicial protection) of the Constitution, and under Article 6 § 1 (fairness) and Article 8 (family life) of the Convention.

The Constitutional Court found that the Regional Court’s decision had been taken on purely formal grounds and had been arbitrary and in contravention of the Code of Civil Procedure, the Brussels II bis regulation, the Hague Convention and the Constitution. That arbitrary decision had meant that the positive obligations guaranteed by Article 8 of the Convention and the applicant’s parental rights had been breached as well.

Consequently, the Constitutional Court quashed the contested decision, remitted the applicant’s appeal against the District Court’s decision of 18 October 2012 to the Regional Court for reexamination and awarded him 3,000 euros (EUR) in compensation for nonpecuniary damage. In addition, the Constitutional Court awarded the applicant everything he had claimed in legal costs (EUR 276.94). It noted that he had made no claim for costs in respect of his observations in reply to those of the enforcement courts concerned by his complaint and concluded that no award was therefore possible in that regard.

The judgment was final and not amenable to appeal.

Following the first constitutional judgment, the enforcement proceedings resumed before the Regional Court, which heard the case on 3 August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, having regard to the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination.

On 15 April 2016 the District Court again declared enforcement of the order impermissible on the basis of newly obtained evidence. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from the court-appointed guardian (the Michalovce office of employment, social affairs and family) about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia, where they had been residing since January 2011, and the applicant’s lack of contact with them while in Slovakia. Relying on the Convention on the Rights of the Child and the Court’s Grand Chamber judgment in the case of Neulinger and Shuruk v. Switzerland (no. 41615/07, ECHR 2010), it concluded that their return to Ireland would go against their best interests.

Following an appeal by the applicant, the Regional Court upheld the lower court’s decision on 3 August 2016 and it became final and binding on 22 August 2016.

In the meantime, the applicant on 22 February 2016 lodged another constitutional complaint aimed at the enforcement proceedings held before the District Court (see paragraph 25 above). He alleged a violation of Articles 6 (length) and 8 (family life) of the Convention and their constitutional equivalents.

On 14 December 2016 the Constitutional Court found a violation of the applicant’s rights under both of those Convention provisions (“the second constitutional judgment”). When dealing with the applicant’s length of proceedings complaint, the Constitutional Court took into account that it was the first time the applicant had raised such a grievance. There had accordingly been no previous constitutional assessment of that matter to prevent it from assessing the impugned enforcement proceedings in their entirety, from when they had been initiated. Having regard to the sensitive nature of the matter and its importance for the applicant’s enjoyment of his parental rights, the Constitutional Court found that the District Court had proceeded with the matter over a long time (for more than four years) and inefficiently (it had stayed the proceedings, delivered an arbitrary enforcement decision on the first occasion, and had taken lengthy procedural steps). Notably, the Constitutional Court emphasised that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It also reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decisionmaking that was in accordance with international standards.

Moreover, the Constitutional Court found that there had been a violation of the applicant’s right to respect for his family life as a consequence of the fact that throughout the enforcement proceedings, whose length had been in breach of his right to a hearing within a reasonable time, he had been unable to assert his parental rights before the competent courts.

The Constitutional Court ordered the District Court to reimburse the applicant’s legal costs and to pay him EUR 4,000 in respect of nonpecuniary damage.

After the enforcement proceedings had been completed by a final and binding decision and before the second constitutional judgment had been issued, the applicant applied to the Constitutional Court a third time on 14 October 2016. He relied on that occasion on Article 6 (fairness and length) in conjunction with Articles 13 and 8 (family life) of the Convention and challenged the decisions of 15 April and 3 August 2016 (see paragraphs 26 and 27 above) on their merits. That complaint is still ongoing.


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary

The applicant was born in 1982 and lives in Eskilstuna, Sweden. She originates from Serbia and is a Serbian Orthodox Christian. In April 2007 she started a relationship with a Serbian man, B., who lived in Sweden, and in August 2007 they married in Serbia. Subsequently, the applicant was first granted a temporary residence permit in Sweden until December 2009 and then, in April 2010, she was granted a permanent residence permit. The applicant moved to Sweden in January 2008 and, on 25 July 2008, she and B. had a son, X.

Due to a suspected infection, X remained in hospital for a week following his birth before he was discharged in good health. On 20 August 2008 the applicant and B. took X to hospital where it was revealed that he had bruises on his genitals. The family was allowed to return home after X had been examined. On the following day X’s condition worsened and he suffered from cramps. The applicant and B. again took him to hospital. X suffered extensive bleeding in the brain and a chief physician at the hospital suspected that he had been severely ill-treated. X was kept in hospital.

On 25 August 2008, a physician filed a report on suspected child abuse with the social services and, on the same date, the Employment and Family Council (arbetsmarknads- och familjenämnden, hereafter the Social Council) in Eskilstuna decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter the “1990 Act”), to take X into immediate compulsory public care on a provisional basis. The decision was executed on that same day.

On 2 September 2008 the County Administrative Court (länsrätten) of the County of Södermanland confirmed the decision of the Social Council. It appears that the applicant did not appeal against this decision.

Subsequently, the Social Council applied to the County Administrative Court for a care order in respect of X. The applicant and B., who were represented by legal counsel, opposed the measure while X’s legal representative agreed that it would be in the child’s best interest to be placed in compulsory public care.

By judgment of 28 October 2008 the County Administrative Court, after having held an oral hearing, granted a care order in respect of X. The court noted that, according to a medical certificate submitted by a chief physician, X had bruises on his genitals, probably injuries from being squeezed. Bleeding in the brain and a red spot on the left side of the chest strongly suggested that X had been gripped tightly and violently shaken and suffered from “shaken baby syndrome”. X had severe brain injuries and would probably suffer lifelong mental and physical disabilities. The court found that X’s injuries had occurred while he had been in his parents’ care. Thus, in the court’s opinion, it did not matter who had actually caused the injuries but it sufficed to state that the parents had failed to protect X from being injured. The court concluded that the parents had shown a serious lack of ability to care for their son. The judgment had immediate effect.

On 9 March 2009 the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the lower court’s judgment. It held that neither the oral statements made before it, nor anyreached by the County Administrative Court.

The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen) which, on 17 June 2009, refused leave to appeal.

In the meantime, on 19 September 2008, X was transferred from the hospital to an evaluation and treatment home (utrednings- och behandlingshem) together with the applicant and B. The main responsibility of that home was to secure X’s protection. It also had the tasks of evaluating the parents’ ability to care for X, of providing the parents with such abilities if needed and of supporting the parents in their crisis situation. The staff at the home found, after the family had been there for eight weeks, that the applicant had shown good ability to satisfy X’s basic physical needs, take care of his practical needs and had been constantly present for him. However, she had shown considerable flaws in her emotional interaction with X and it was said, among other things, that she had not been able to separate her need for consolation and emotional care from X’s feelings and needs. Her attitude towards X was described as if she objectified him rather than regarded him as an individual in his own right, which in the report was described as highly worrying. It was further noted that she did not accept X’s injuries and that she did not talk at all about his future disabilities. As regards B., the staff at the home noted inter alia that he had been absent to a great extent due to his work commitments.

In December 2008 a criminal investigation concerning suspected child abuse in respect of the applicant and B. was discontinued since it was impossible to prove that either of them had committed the abuse.

In March 2009 X was placed in a family home (familjehem) consisting of a Swedish married couple.

In September 2009 the applicant twice reported B. to the police, claiming he had threatened to kill her and her family.

On 5 February 2010 the applicant requested the Social Council to terminate the public care. She insisted that she had never ill-treated X nor witnessed anyone else doing so. She had had no reason to suspect that X risked ill-treatment at home. Moreover, she submitted that she and B. had divorced and that, through an interim decision, she had been granted sole custody of X while B. had limited visiting rights. Furthermore, she had completed her studies in Swedish for immigrants and was planning to find work.

The Social Council ordered an investigation into the family’s situation which was completed on 22 February 2010. The purpose was to investigate and analyse whether X should remain in public care. The social services spoke with the applicant and B., visited the family home and gathered relevant information for the case. Once finalised, the investigation report stated, inter alia, that according to a medical certificate issued by Professor O.F., a specialist on “shaken baby syndrome”, X was suffering from that syndrome. It was also stressed that X’s life had been in danger when he had been shaken, that he had suffered lasting brain injuries and would need care for the rest of his life. It was further noted that X had suffered injuries to his genitals. Moreover, it was stressed that it was the social services’ responsibility to ensure X’s safety and that, regardless of which parent had caused X’s injuries, the other parent had failed to protect him.

On 25 March 2010 the Social Council rejected the applicant’s request to terminate the public care. In its decision the Social Council referred to the findings of the investigation report.

The applicant appealed against the decision to the County Administrative Court and requested that the care order be terminated. She maintained that there was no need to keep X in public care as she was fully capable of caring for her own child. She further criticised the medical certificates that had been submitted in the case and contested the assumption that X suffered from “shaken baby syndrome”. Instead she claimed that X’s injuries had been caused by malpractice of personnel at the hospital where he had been treated. She further argued that X’s human rights were being violated since he was not allowed to speak his native language and practise his religion. She also complained about the proceedings before the Social Council, which she considered to be flawed.

The Social Council contested the applicant’s claims, stressing that X’s life had been in danger and that he had suffered lasting brain injuries while in his parents’ care.

On 28 May 2010 the County Administrative Court rejected the applicant’s request to obtain an opinion from the Legal Advisory Council of the National Board of Health and Welfare (Socialstyrelsens Rättsliga råd). According to the County Administrative Court, there was no reason to obtain such an opinion.

Both parties submitted documentary evidence. The applicant submitted, inter alia, a medical certificate of her own, stating that X likely suffered from a severe brain injury, probably anoxic brain injury (injury to the brain due to a lack of oxygen).

On 20 August 2010 the County Administrative Court held an oral hearing in the case, where the applicant insisted that she had not in any way ill-treated X. Nor had she seen that X had been harmed by B. or any other person. According to her, there was nothing to suggest any flaws in her parental abilities and she maintained that X’s injuries had been caused by malpractice at the hospital. The Social Council stated that it could not rule out the possibility that X had been ill-treated at home. It further stressed that the submitted medical certificates showed that someone had shaken X, causing him severe injuries. X’s legal representative agreed that it would be in his best interest to remain in public care.

On 31 August 2010 the County Administrative Court rejected the appeal. Firstly, it found that there had been no flaws in the Social Council’s handling of the case which could affect the court’s assessment. The court then noted that the applicant had contested the physicians’ conclusions and, moreover, that she had submitted a medical certificate of her own. However, the court considered that the applicant’s reasoning in this regard was based on speculation and accusations which, in all essential parts, were unsubstantiated. It held that the medical certificate submitted by the applicant did not in any way contradict those previously submitted. Thus, nothing had emerged that would lead the court to reassess the circumstances that had led to the initial decision to take X into public care. Furthermore, the court found that the changes to the applicant’s life (the divorce and obtaining sole custody of X) were not sufficient to have a decisive effect on the outcome of the proceedings. It also stressed that it was important that X continue to bond with his family home parents. Furthermore, the court took into consideration that X had been subjected to severe ill-treatment while in his parents’ care and that the circumstances surrounding the incident had not been clarified. Thus, the compulsory public care order should remain in place.

The applicant appealed to the Administrative Court of Appeal, maintaining her request for an opinion from the Legal Advisory Council. The applicant also reiterated her criticism of the conclusions given in the medical certificates and, again, questioned the assumption that X suffered from “shaken baby syndrome”. She further maintained that X’s injuries had been caused by malpractice at the hospital. The applicant also questioned the family home’s ability to care for her son.

The Social Council and X’s legal representative both contested the applicant’s claims.

On 3 November 2010 the Administrative Court of Appeal granted the applicant’s request for an opinion from the Legal Advisory Council. The opinion was submitted to the court on 18 January 2011. It referred to a certificate by the scientific advisor T.A., a physician specialised in medical radiology, which stated, inter alia, that X’s injuries had been caused by severe violence and that his injuries corresponded exactly to “shaken baby syndrome”. The injuries could not have been caused by illness or complications related to an illness nor through a minor accident such as a fall from a changing table or similar. The injuries could not have been a consequence of an injury during delivery either. Thus, T.A. wholly agreed with the assessments previously made by Professor O.F.

On 18 March 2011 the Administrative Court of Appeal held an oral hearing where the applicant stated that she had started to question her earlier position that X’s injuries had not been caused by ill-treatment in their home. Although she had not actually witnessed anyone harming X, she said that the only person, apart from herself, who could have done so was B. On the day they had taken X to the hospital, B. had been in a bad temper. On that day B. had taken care of X while she had been in the bathroom preparing a bath for X, and from the bathroom she had heard X cry and had gone to see what was the matter. B. had then told her to leave the room and after she had done so the baby had become quiet and B. had left the apartment. Just shortly after this and while undressing X, she had noticed that something was wrong with him and that he was having trouble breathing. B. had threatened her and told her that she would be expelled from Sweden if she were to tell anyone what had happened. She also told the court that B. had often been irritated when X cried and that he had had a tendency to “explode”. The applicant further stated that her life was stable, she spoke Swedish, had an apartment and work, and she would do everything to ensure that X received the care and treatment he needed.

The Social Council maintained that X would be exposed to danger if he were to be left in the applicant’s care. X’s legal representative contested the applicant’s claims and pointed out that, although it had not been clarified who had caused X’s injuries, it must be presumed that it was one of the parents. Although she found no reason to question that, with help, the applicant would be able to care for her son, she considered that he was in need of protection until it had been established who had caused his injuries.

On 12 April 2011 the Administrative Court of Appeal upheld the lower court’s judgment. From the outset, it noted that the primary consideration was the best interests of the child. The court then observed that X needed extensive care and great responsibility was therefore placed on the custodian in terms of understanding X’s needs. Thus, the court considered it encouraging that the applicant had now accepted the conclusions in the medical certificate concerning X’s state of health and the cause of his injuries. In addition, the court considered that the applicant’s life situation had improved since the decision to take X into public care. Of decisive importance to the court was, however, whether X’s needs could be met by the applicant. In this context, the court noted that it had still not been clarified who had caused his injuries. The court further considered that, in the light of the applicant’s statement before the court, her previous behaviour was difficult to understand. Although the court acknowledged the applicant’s exposed situation at the time of X’s injuries, it nevertheless stressed that the conditions in the family had led to serious deficiencies in X’s care, causing him life-threatening injuries and lifelong disabilities. The court concluded that there was still a clear risk of impairment to X’s health and development if the public care were to be terminated.

Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 20 June 2011.

On 29 September 2011, in proceedings regarding custody of X between the applicant and B., the District Court (tingsrätten) repealed its provisional decision of 22 October 2009 to grant sole custody of X to the applicant and decided that the parents should have joint custody. It appears that the applicant and B. had agreed that they needed to cooperate on questions relating to X’s future situation.

On 12 December 2012 and on 10 July 2013 the Social Council decided that the public care should continue. As far as is known to the Court, the applicant did not appeal against these decisions.

Following the granting of the public care order, the applicant’s contact rights to visit X were regularly examined by the domestic authorities. During X’s first three weeks in the family home, the applicant and B. visited him three times per week. Subsequently, the applicant and B. visited him once a week. During the visits, an interpreter and a support person were present.

On 4 June 2009, the Social Council decided to reduce the parents’ contact rights to once every other month since the visits had had a clearly negative effect on X’s mental state. The applicant did not agree with the changes and appealed against the decision to the County Administrative Court. On 15 October 2009 the court dismissed the appeal. The applicant did not lodge a further appeal with the appellate courts. In January 2010 the contact rights were extended to one and a half hours once every month, as X was feeling better. However, on 22 July 2010 the Social Council decided again to reduce the parents’ contact rights to one hour every month, since X had been affected negatively during and after the visits.

The applicant appealed against the decision, maintaining that she had not in any way ill-treated X and that she wanted to care for him. On 31 August 2010 the County Administrative Court, after having held an oral hearing, upheld the Council’s decision. The court observed that X had reacted negatively during the visits and held that, due to his great need of care and treatment for his disabilities, it was important for him to be in a stable and calm environment and be allowed to bond with his family home parents.

The applicant appealed to the Administrative Court of Appeal which, after having held an oral hearing, rejected the appeal on 12 April 2011. The court noted that the Social Council intended to film the visits and subsequently, with the help of the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin), analyse the results. Having regard to this, and the observations made by the Social Council during the visits, the court held that the contact restrictions should remain. The applicant did not appeal against the decision to the Supreme Administrative Court.

In the meantime, in May 2010, the applicant requested that X be placed in another family home since she considered that the current family home couple did not care sufficiently well for her son. She also added that she considered it to be X’s right to be placed in a Serbian family. In September 2010, after having carried out an investigation, the Social Council rejected the request on the ground that it would not be in X’s best interest to be moved to another family home and that his needs were best met by remaining where he was. The applicant does not appear to have appealed against this decision to the administrative courts.

On 26 October 2011 the Social Council decided that the applicant would be allowed to speak Serbian to X during the visits.

Following the filming of the applicant and X during one hour, in a report dated 3 June 2012, the company, which had been assigned by the Social Council to carry out the filming and analysing the emotional interplay between the applicant and X, stated that the applicant had shown sensitivity towards X and that they had shown a genuinely good interplay. It was further noted that the applicant had the necessary abilities to support X in his future development. The report concluded that it was of great importance for X to be allowed to see his mother much more often. It was also recommended that the visits take place without the presence of the family home parents.

On 12 June 2012, the contact rights of the applicant and B. were extended to one and a half hours once every month. It was also considered that the meetings functioned without a support person present. According to the Government, this arrangement was to remain in place until the end of 2013 and the applicant had not requested any changes to it. Moreover, a meeting between the applicant, the family home and the Social Council, scheduled for October 2013, was cancelled upon request by both the applicant and the family home, as they had already agreed on the remaining visits for that year. The Court has not been informed whether any subsequent changes to the time, form or frequency of the visits have taken place.

At present the applicant is working as a kindergarten teacher.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1965 and, at the material time, lived in Žilina.

On 26 June 2009 the applicant went to the offices of the Asylum Authority in Gbely with the intention of applying for asylum in Slovakia. From there, he was escorted to the Foreigners Police Department in Bratislava, where he arrived at about 3 p.m.

Following questioning on the same day, that is to say on 26 June 2009, the Foreigners Police Department decided to detain (zaistenie) the applicant, finding, inter alia, that he was staying in Slovakia without a valid travel document or any legal entitlement, and in spite of a previous decision expelling him from Slovakia and banning him from returning there for five years.

Under the detention order of 26 June 2009, the applicant was detained in the Alien Detention Centre in Medveďov.

On 16 July 2009 the Trnava Regional Court (Krajský súd) received a submission dated 13 July 2009 in which the applicant applied for judicial review of the order of 26 June 2009, challenging the assessment of the facts and the interpretation and application of the law by the police.

On 13 August 2009 the Regional Court held a hearing at which the applicant was not present in person but was represented by his lawyer. At the conclusion of the hearing, on the same day and in the presence of the applicants’ lawyer, the Regional Court dismissed the claim.

The written version of the judgment of 13 August 2009 was sent out on 27 August 2009 and served on the applicant on 7 September 2009.

On 2 November 2009 the applicant lodged a complaint with the Constitutional Court (Ústavný súd), relying on Article 127 of the Constitution (individual complaint) and Article 5 § 4 of the Convention (speedy review of the lawfulness of detention), and complaining about the length of the proceedings in respect of his application dated 13 July 2009.

On 16 December 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.

It observed, on the one hand, that the Regional Court had granted the police as long as fifteen days to submit observations in reply to the applicant’s claim, which the Constitutional Court held to have been disproportionately long.

However, overall, the decision-making process in respect of the applicant’s claim had lasted only twenty-nine days, and not thirty-one days, as argued by the applicant. On that account, the Constitutional Court observed that the period under consideration had not commenced until 16 July 2009 – when the applicant’s submission had reached the Regional Court – and that it ended on 13 August 2009, when the applicant had learned of the Regional Court’s judgment through his lawyer.

The written version of the Constitutional Court’s decision was served on the applicant on 21 January 2010.

Meanwhile, at an unspecified time in November 2009, the applicant had been expelled to Russia.

In his observations in reply to those of the Government on the admissibility and merits of the present application, the applicant informed the Court that he had challenged the judgment of 13 August 2009 by means of an appeal to the Supreme Court (Najvyšší súd).

On 3 November 2009 the Supreme Court quashed the impugned judgment and remitted the matter to the Regional Court for re-examination, having found that the latter had neither established all the relevant facts nor dealt properly with some of the applicant’s material objections.

On 19 January 2010 the Regional Court ruled anew on the applicant’s application dated 13 July 2009 by quashing the order of 26 June 2009 and remitting the matter to the Foreigners Police Department for a new decision on the grounds that they had failed both to establish and properly to assess all the relevant facts. The decision was served on the applicant on 19 February 2013.


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

The applicant, M.S.S., is an Uzbek national. He was represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

The applicant arrived in Russia in June 2012.

On 16 August 2012 he was charged in absentia in Uzbekistan with the unlawful organisation of an extremist religious group. On 24 August 2012 the Yakkasaray District Court in Tashkent ordered his arrest.

Between 2012 and 2014 the applicant stayed in Russia lawfully on the basis of his registration as a migrant and a renewable work permit. During that period he did not apply for refugee status or for temporary asylum or for a temporary residence permit.

In 2014 the applicant’s family (wife and three children) arrived from Uzbekistan to join him.

On 30 June 2014 the applicant was arrested in Russia on the basis of an international search warrant. On the same day the Ministry of the Interior of Uzbekistan informed the Russian authorities that it was intended to seek the applicant’s extradition and requested his detention pending such extradition.

On 2 July 2014 the Oktyabrskiy District Court of Ivanovo remanded the applicant in custody pending extradition. On 7 July 2014 the applicant was released on the orders of the Oktyabrskiy District Prosecutor, since under current Russian legislation his criminal prosecution had become timebarred, thus rendering extradition impossible.

It remains unclear whether the Uzbekistani authorities have submitted an official request for the applicant’s extradition.

On 8 July 2014 the applicant applied for refugee status in Russia. On 14 October 2014 the Ivanovo Regional Department of the Federal Migration Service (the “Ivanovo Regional FMS”) refused to grant his request, stating that the applicant’s allegation that he would run the risk of ill-treatment in Uzbekistan had not been “objectively confirmed”.

On 15 October 2014 the applicant was informed by the Ivanovo Regional FMS that “a person having exhausted all the instances of appeal ... and refusing voluntary departure from Russia within three days of the date of receipt of the [final] decision will be administratively expelled or deported”.

On 14 November 2014 the applicant appealed to the Federal Migration Service of the Russian Federation (the “FMS of Russia”) against the refusal to grant refugee status. On 23 December 2014 the appeal was rejected.

On 16 March 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant refugee status.

The applicant lodged an appeal, but asked the court to grant him deferral of payment of the court fee (150 Russian roubles (RUB), or approximately 3 euros (EUR)). The court deferred payment until 6 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.

The judgment of 16 March 2015 became final on 27 May 2015.

On 15 October 2014 the applicant applied for temporary asylum in Russia, referring to the risk of ill-treatment in Uzbekistan. On 15 January 2015 the Ivanovo Regional FMS refused his request.

On 5 February 2015 the applicant unsuccessfully lodged an appeal with the FMS of Russia against the refusal.

On 20 April 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant temporary asylum.

The applicant again lodged an appeal, but asked the court to grant him deferral of the payment of the court fee (RUB 150, or approximately EUR 3). The court deferred payment until 29 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.

The judgment of 20 April 2015 became final on 22 June 2015.

On 6 July 2015 the applicant requested that the Court apply Rule 39 of the Rules of Court to prevent his removal to Uzbekistan. He claimed that he could be deported to Uzbekistan at any moment since the refusals to grant refugee status and temporary asylum had become final, and an appeal against a deportation decision did not have a suspensive effect.

On 7 July 2015 the Court granted the applicant’s request and indicated to the Government that the applicant should not be deported or expelled to Uzbekistan for the duration of the proceedings before the Court.

In order to regularise his status in Russia, on 24 August 2015 the applicant applied to the Ivanovo Regional FMS for migration registration, a work permit and a temporary residence permit.

In a letter of 25 September 2015 the Ivanovo Regional FMS informed the applicant that he was not entitled to apply for a work permit and a temporary residence permit because his stay in Russia was illegal. It also confirmed that the applicant would not be removed from Russia as long as the interim measures indicated by the Court continued to apply.

At the same time, the Ivanovo Regional FMS informed the applicant that he could be put on the migration register for 90 days in order to legalise his stay in Russia and informed him how to go about registration.

The applicant has not informed the Court whether he has followed the migration registration procedure.

No decision on the applicant’s expulsion or deportation has been taken so far by the Russian authorities.

A summary of the relevant domestic law, as well as information concerning the human rights situation in Uzbekistan, was provided in the case of Akram Karimov v. Russia (no. 62892/12, §§ 69-111, 28 May 2014).


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)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1977 and lives in Ljubljana.

The applicant was detained in the closed section of Ljubljana prison from 5 May 2009 to 26 May 2009, in the remand section from 25 August 2009 to 11 February 2010, from 11 March 2011 to 22 March 2011 and from 8 June 2011 to 11 January 2012 and again in the closed section from 24 August 2012 to 4 December 2012.

On 25 August 2009 he was held in cell 90 measuring 18.07 square metres (not including a separate 1.75 square metre sanitary facility), shared with four other detainees and with 3.2 square metres of personal space. From 26 August 2009 to 11 February 2010 he was held in cell 50 measuring 8.07 square metres (not including a separate 1.23 square metre sanitary facility) and cell 52 measuring 8.04 square metres (not including a separate 1.25 square metre sanitary facility), alone with almost 7 square metres of personal space or with another detainee with 3.4 square metres of personal space.

The cell for two detainees, where the applicant was held in the remand section, contained one bunk bed, one bigger and one smaller table, two chairs, two wardrobes and two 89 x 54 cm windows, which detainees could freely open or close.

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

As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (Mandić and Jović, cited above, § 78). The Government stated that from 9 February 2011 on detainees could spend three hours per day outdoors.

On 18 December 2009 the applicant lodged the application complaining about the prison conditions of his detention from 25 August 2009. In the supplement to his application of 17 September 2013, he complained also about the conditions of his detention from 5 May 2009 to 26 May 2009, from 11 March 2011 to 22 March 2011, from 8 June 2011 to 11 January 2012 and from 24 August 2012 to 4 December 2012.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1950 and lives in Warsaw.

The applicant was detained from 15 June 2007 until 21 January 2009 after a conviction. It appears that he was at first committed to a semiopen facility, Dobrowo Remand Centre, and following his reclassification as a habitual offender, to a closed-type facility, Koszalin Remand Centre.

The following findings were made by the domestic courts in the course of the civil proceedings described below (see paragraphs 2433 below). Neither the applicant nor the Government contested them.

For 309 days of his total period of detention in Koszalin Remand Centre, the applicant was held in cells which did not conform with the statutory minimum size of 3 sq. m per person. More particularly, the applicant had between 1.9 to 2.6 sq. m of personal floor space in his cells.

Initially, the toilet facilities in Koszalin Remand Centre were not separated from the living area of the cells in question. In 2008 or 2009, however, construction work started and the toilets were gradually enclosed by concrete walls with a door.

All of the applicant’s cells were well-lit, ventilated and, when necessary, heated. They were equipped with enough bunk beds for each detainee to have a separate place to sleep, as well as a table, stools and cupboards.

In 2009 the Koszalin Remand Centre’s day-room was turned into cells. However, detainees continued to have access to a library and various forms of leisure and cultural activities.

It appears that in Koszalin Remand Centre the applicant had one hour of outdoor exercise per day. Initially, the applicant had one hot shower per week. From 18 October 2007 that number was increased to five per month.

The applicant was assigned a top bed. He submitted that that was contrary to medical recommendations because he had health problems (see paragraphs 17-20 below). He did not submit any documents to that effect.

The applicant submitted that for the whole of 2008 he had not been able to attend Sunday Mass at the remand centre.

As established by the domestic courts (see paragraphs 24-33 below), at the material time, three Catholic services had been organised on Sundays and one on religious holidays. Prisoners wishing to attend had to sign up with their supervisors (wychowawca). Subsequently, a list of persons approved for a particular Mass had been prepared by remand centre staff, with the help of a special computer program. The system had been designed to select prisoners on a rotation basis, according to their classification groups and in a way so as not to mix prisoners classed as dangerous detainees with those who did not require any special security measures. At times, however, individual prisoners were rejected because they did not belong to the group authorised to attend Mass on a particular day.

The remand centre register showed that the applicant had been authorised to attend Sunday Mass four times, twice in September and twice in November 2008.

The domestic courts established that three years before his detention the applicant had been admitted to hospital because of inflammation of the testicles, prostatic hyperplasia, pneumonia and an unspecified skin condition, for which he had received treatment similar to that usually prescribed for dermatitis (zapalenie skóry).

During his detention in Koszalin Remand Centre, the applicant often made appointments with the in-house doctor because of colds, back ache and prostate problems. On 15 November 2007 a drug called Prostamol was prescribed for the applicant, in compliance with his wish. Another medicine which the applicant had previously taken for his prostate condition, Doxar, was not in the remand centre’s stock. A generic medicine was offered to the applicant instead. Eventually, Doxar was sent to the prison by the applicant’s relatives.

The applicant also received treatment for a scalp condition, tinea versicolor (łupież pstry). In addition to that treatment, from 18 October 2007 onwards, he was entitled to an additional monthly shower. On 20 June 2008 the applicant was examined by a dermatologist and his skin condition was diagnosed as seborrhoeic dermatitis (łojotokowe zapalenie skóry), a chronic inflammatory scalp disorder. Consequently, the applicant’s treatment was changed slightly. It was also established that the first symptoms of that disorder had appeared prior to the applicant’s detention, in 2004. An expert in dermatology, appointed by the domestic court, excluded the possibility that the applicant had developed the illness because of contact with an allegedly dirty and mouldy mattress. The expert also concluded that the applicant had received the treatment which was usually prescribed in such cases by dermatologists. In the 18 months following diagnosis of the illness, the applicant was seen by a doctor on thirty occasions. Subsequently, throughout 2008, he made twelve medical appointments.

In 2008 the applicant also obtained dentures.

In 2007 and 2009 the applicant lodged a number of complaints with the Ombudsman, the Ministry of Justice and the relevant penitentiary court, informing them of the allegedly deplorable conditions of his detention, his inadequate medical care and of unreasonable restrictions on the practice of his religion during his detention in Koszalin Remand Centre.

On an unspecified date the Central Inspectorate of the Prison Service (Centralny Inspektorat Służby Więziennej) informed the applicant that his complaints had been considered ill-founded. It was established that the applicant had received adequate medical care. In particular, the remand centre had administered Prostamol and the other drug, Doxar, had been obtained with the authorities’ permission from the applicant’s relatives. The remand facility in Dobrowo had not registered any overcrowding. The applicant’s cells had been adequately furnished and there had been place for each detainee at the cell’s communal table.

In letters of 11 May and 15 June 2009, the authorities informed the applicant that he had had unrestricted access to religious services in Koszalin Remand Centre, in accordance with the special schedule. Moreover, the applicant’s placement in overcrowded cells had been in compliance with the law, namely Article 248 of the Code of the Execution of Criminal Sentences.

The applicant, who was represented by a lawyer, also brought a civil action for infringement of his personal rights on account of overcrowding, inadequate medical care and unreasonable restrictions on the practice of his religion in Koszalin Remand Centre by means of attendance of Sunday Mass. He claimed 50,000 Polish zlotys (PLN) (approximately 12,000 euros (EUR)) in compensation. The domestic courts examined the claim under Articles 23, 24, 417 and 448 of the Civil Code (Kodeks Cywilny).

On 14 December 2010 the Koszalin District Court (Sąd Rejonowy) held that the applicant’s placement in overcrowded cells for a period of 309 days during his detention constituted degrading and inhuman treatment within the meaning of domestic law and the Convention.

The rest of the applicant’s complaints were considered ill-founded.

The evidence which was obtained by the civil court, inter alia, the applicant’s medical history, witness testimony and the report of an expert in dermatology, had disproved the applicant’s allegations that he had contracted his skin condition in the remand centre because his mattress had been dirty and damp and that his illness had been inadequately treated.

The domestic court considered that in view of the fact that the applicant had been authorised to attend Sunday Mass a total of four times in September and November 2008 and in the light of the testimony of the prison chaplain that the applicant had been free to request attendance in Sunday Mass, it could not be said that his access to religious services had been unreasonably restricted. It was also noted that detainees had been free to make individual appointments with the remand centre’s priest. The applicant had not wished to do so at the material time.

Lastly, the applicant’s submission that he had obtained a doctor’s recommendation to have a bottom bunk had not been supported by any documents.

In view of the above, the Koszalin District Court awarded the applicant PLN 5,000 (approximately EUR 1,200) in non-pecuniary compensation on account of the suffering caused by his detention in overcrowded cells. The domestic court also ordered the applicant to pay PLN 1,200 (EUR 300) towards the costs of the proceedings.

The applicant submitted a hand-written appeal against the above-mentioned judgment, dated 24 January 2011. The document does not bear any stamps but is accompanied by an official note, confirming that on 24 January 2011 the applicant wished to send his appeal to the Koszalin District Court from Żytkowice Prison.

On 5 April 2011 the Koszalin Regional Court (Sąd Okręgowy) dismissed an appeal brought by the respondent and, apparently, the applicant’s appeal. The first-instance judgment was upheld.

An appeal by the applicant against the judgment of the appellate court was rejected as no such appeal was available under the applicable law.