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- European Human Rights Law

: 100769
: European Human Rights Law
:
: 2010 : 8
: 25.00 . ( WMU )
European Human Rights Law


Variant 2.
Mr. X as the president of a joint-stock company was accused of waste of money resources. He was taken into custody. The judicial investigation of his case was started but then was postponed for almost two years. In general the duration of the judicial investigation was more than 4 years and finally Mr. X was recognized innocent and was set free. During this period Mr. X was detained in solitary confinement.
The facts of Mr. Xs life in solitary are:
- The area of the room was 17 meters on which 8 beds were situated. The number of detainees was 23 persons so that they were compelled to sleep by turns
- The light and TV in the cell were switched on all the time
- WC in the cell was in the place where everybody (detainees and security) could see it
- There was no ventilation in the cell, so in summer it was very hot and in winter- cold and airless
- Because everybody in the cell were smokers Mr. X was subjected to passive smoking
- The cell was infested with cockroaches and other insects
- Mr. X became ill with different severe infections. He lost all his toenails and some finger nails. Moreover, sometimes people ill with tuberculosis and syphilis were temporarily placed in the cell with Mr. X and thats why he was compelled to make preventive inoculations.

Mr. X wants to obtain protection from some international mechanism/organs. Make a recommendation to him and analyze what rights were breached.



Since Mr. X is a citizen of a member country of the Council of Europe, he may appeal to the European Court of Human Rights.
The European Court of Human Rights is an international organization which only under certain circumstances may receive complaints of persons who believe their rights under the European Convention on Human Rights had been violated. This Convention is an international treaty, under which most European countries have committed themselves to observe a number of fundamental rights. Protected rights are outlined in the text of the Convention itself, as well as in the Protocols of the N 1, 4, 6 and 7, ratified by only some of the States.
As Mr X personally and directly a victim of violations of several fundamental rights of the States, he may seek protection in court.
Complaints that the Court may consider, should be directed against States that have ratified the Convention or relevant protocol, and related to events that occurred after a certain date. This date depends on whether it is against a State of the complaint, but also on whether the complaint concerns violations of rights set forth in the Convention or in one of the Protocols.
The subject of complaints filed with the Court, should be the event for which the responsible public authority (legislative, executive, judiciary, etc.). One of the States.
Under the provisions of Article 35 1 of the Convention, the Court may receive applications for review only after it had exhausted all available domestic remedies, and not later than six months after the final decision. The court will not be able to take complaints that do not meet these eligibility requirements [1, p. 40].
For that reason, a crucial fact that before going to court, Mr. X has mobilized all the courts of the State, with which it seemed possible to eliminate the violation of his rights. Otherwise he would have to prove that such remedies would be ineffective. This means that he must first apply to the national courts, until the highest court to which the jurisdiction of the case. It is necessary to state to national jurisdictions at least on the merits of those complaints, which he later intends to send to the Court.
To appeal to the Court, Mr. X has a period of six months from the date of a decision by the competent authority of the supreme state authority or court. A six-month period is counted from the receipt of Mr. X or his counsel a final judicial decision rendered in the normal course of appeal, but not since the subsequent failure to resume the hearing of the case.
Within six months suspended admission to the trial of writing to Mr X, makes clear - even if only in summary form - the object of his complaint, or receipt of a completed form of the complaint. Just a letter requesting information was insufficient to suspend the six-month period.
In a statement, Mr. X may indicate that the following have been violated his rights.
ARTICLE 5 of the Convention
1. Everyone has the right to liberty and security of person.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 5 applies to everyone. Every person shall enjoy the right to protect the integrity, i.e., not to be deprived of his liberty, except upon compliance with the requirements of paragraph 1, and if it proved to be detained or taken into custody, the guarantees provided for tablespoons 5 of the Convention[1, p. 6].
Reflecting the principle of favor liberates Art. 5 provides a list of circumstances warranting imprisonment, it could be interpreted restrictively. The purpose of article is personal freedom in the classical sense as the physical freedom of the individual. In practice, the circumstances listed in Art. 5 dont relate to simple restrictions on freedom of movement.
Favor liberates are reflected in the principles expressed in art. 5 and limit the power of States to take measures involving deprivation of liberty. This is the principle of an exhaustive nature of the circumstances under which the individual may be deprived of liberty. The deprivation of liberty consistent with the Convention only if the measure is applied in one of the situations listed in Art. 5. This is confirmed by the Court, when he declares that this list is restrictive, closed nature, which allows only a narrow interpretation available to the narrowing of the room for maneuver.
ARTICLE 3 of the Convention
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The treatment, which is classified as poor, must reach the minimum weight. The victim must show that the treatment it can be considered as falling under the prohibition contained in the article. Its obvious that the evaluation of this minimum is, in fact, relative. It depends on the totality of the circumstances, in particular, the duration of the wrongful treatment and its consequences for physical and mental health, sex, age and health of the victim. The mere threat of torture falls under its effect, if the use of prohibited measures seem real and immediate.
The concept of administrative practices is important because it promotes training activities as contrary to the Convention, stressing its reliability
The decision in the case Ribitsch v. Austria (1995) the Court, stressing that one should be careful when it comes to the rights protected by art. 3, said: "A person deprived of liberty, any use of physical force, which wasnt necessary because of his conduct, it demeans the dignity and a violation of Article 3"[2, p. 5].
Although the state - members are responsible only for the measures applied to persons under their jurisdiction, sometimes there are situations when they have to be responsible for the virtual violation in cases of expulsion or extradition of foreigners. States arent free to accept, to expel or extradite foreigners, while the Convention doesnt provide a right to asylum.
However, the powers accorded to the state, should take into account the obligations arising from international treaties including the Convention. Therefore, in practice, the Court emphasized that the expulsion of an alien to a country may, in exceptional cases, because the question isnt whether he was there subjected to inhuman treatment
In accordance with Article 3 of the Convention on the protection of human rights and fundamental freedoms, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
In practice, the application of the Convention on the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights to "inhuman treatment" includes cases where such treatment is usually an intentional nature, takes place over several hours, or when as a result of such treatment a person was caused actual physical harm or profound physical and mental suffering.
In accordance with Article 3 of the Convention and the requirements of European regulations. Court of Human Rights, the conditions of detention of the accused in custody must be compatible with respect for human dignity.
Degrading treatment is recognized, in particular, such a treatment, which causes a person a sense of fear, anguish and inferiority. This person must not cause hardship and suffering to a higher extent than the level of suffering which is inevitable during incarceration, and health and welfare of persons must be guaranteed by taking into account the practical requirements of the detention regime.
From the condition of the problem, we see that Mr. X was in the following conditions:

- The area of the room was 17 meters on which 8 beds were situated. The number of detainees was 23 persons so that they were compelled to sleep by turns
- The light and TV in the cell were switched on all the time
- WC in the cell was in the place where everybody (detainees and security) could see it
- There was no ventilation in the cell, so in summer it was very hot and in winter- cold and airless
- Because everybody in the cell were smokers Mr. X was subjected to passive smoking
- The cell was infested with cockroaches and other insects

Based on the foregoing, the court must conclude that the chamber which contained a Mr X was not fitted in accordance with the rules.
In addition, legal authorities unreasonably long been considered a case of wine Mister X.
In the end it turned out that Mr X was not guilty and did not need to keep him in prison.

Consequently, there was a violation of rights.
Dealing with a man considered to be "degrading" if it is that causes of such abuses feelings of fear, suffering and disability, which makes them feel humiliated and trampled on (Resolution of the European Court of Human Rights, Kalashnikov v. Russia) [2, p. 102].

The record should:
- Mr. X became ill with different severe infections. He lost all his toenails and some finger nails. Moreover, sometimes people ill with tuberculosis and syphilis were temporarily placed in the cell with Mr. X and thats why he was compelled to make preventive inoculations.
In evaluating the above evidence in their entirety, the court must conclude that as a result of improper conditions of Mr X was caused by moral and physical sufferings, the level which caused a greater degree than the level of deprivation and suffering which is inevitable in the deprivation of liberty; conditions applicant's detention, in particular, unsanitary conditions in it and harmful to the health and welfare of the applicant implications of this situation are equal to degrading treatment. Consequently, the violation of Article 3 of the Convention took place.
In accordance with Article 41 of the Convention on the Protection of Human Rights and Fundamental Freedoms, if the Court finds that a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to the Court, if necessary, afford fair compensation to the injured party.
Given the requirements of reasonableness and fairness, the plaintiff's individual characteristics, the degree of harm to his health conditions inappropriate content, the degree of physical and moral suffering of the plaintiff the amount of compensation for moral damage, the court determines.
Mr. X as the aggrieved party is entitled to compensation
ARTICLE 5 of the Convention
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms:
Article 3 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms Compensation for wrongful conviction
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
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