8.  The applicant was born in 1969. 9.  On 22 May 1996 the applicant was taken into custody by the Jõgeva police on suspicion of having committed burglary. 10.  On 8 November 1996 the applicant was charged with fraud and three counts of burglary. 11.  On 19 May 1997 the Jõgeva County Court (Jõgeva Maakohus) convicted the applicant as charged and sentenced him to four years’ imprisonment. 12.  On 8 October 1997 the Tartu Court of Appeal (Tartu Ringkonnakohus) quashed the judgment of the County Court on procedural grounds and remitted the case to it for fresh consideration by a differently constituted court. The applicant was ordered to remain in custody. 13.  In November 1998 a new criminal case concerning an act of hooliganism in prison was opened against the applicant, which was later joined to the charges under consideration before the trial court. 14.  On 28 September 1999 the County Court convicted the applicant on all charges and sentenced him to four years and six months’ imprisonment. 15.  On 29 November 1999 the Court of Appeal acquitted the applicant of hooliganism, upholding the County Court’s judgment in respect of the other charges. 16.  On 19 January 2000 the Supreme Court (Riigikohus) refused the applicant leave to lodge an appeal with it. 17.  During his detention on remand from 22 May 1996 the applicant was kept for the most part in Tallinn Central Prison (Keskvangla). In addition to several shorter stays in the prison hospital totalling about three months, the applicant was hospitalised from 17 May 1999 until 22 December 1999. 18.  The applicant spent 14 short periods, lasting from 5 to 15 days, in the Jõgeva Police District Arrest House (Jõgeva Politseiprefektuuri arestimaja), where he was escorted from the Central Prison in connection with his trial. In total he spent 139 days in the arrest house. 19.  On 22 December 1999 he was sent to serve his sentence in Murru Prison. He was released in November 2000. 20.  As regards the Jõgeva Arrest House, the applicant submits that his cell measured 9 sq. m (or 3.5 m by 3 m). It had no ventilation and had only a small window (25 cm by 25 cm). The ventilation was installed in 2000. There was no chair, table or proper bed. Inmates slept on a shared platform which was used by four to five persons. In the cell there was little room for movement, since 60% of it was occupied by the large plank bed. From 6 November to 9 November 1998 the applicant shared his cell with R.J., who was ill with tuberculosis in its contagious form.
The inmates were provided with food only once a day. They had to keep their food on the floor, as there were no cupboards for it. The toilet (a hole) and the sink also occupied part of the tiny room. The condition of the cell was extremely insanitary.
(b)  The Central Prison 21.  The general conditions in Tallinn Central Prison were equally unsatisfactory. The applicant’s cell lacked fresh air and it had no natural light as there were metal slats fitted to the cell window. He was permitted to walk outside his cell for one hour a day. The food in the detention facility was of poor quality. 22.  All ordinary confinement cells where the applicant was held in the Central Prison measured 14 m by 3 m. He stayed in the following cells.
From July to September 1996 he was held in cell no. 89. There were fourteen inmates in it.
From October to December 1996 he was in cell no. 141. There were four inmates.
In December 1996 he was in cell no. 78. The number of detainees was eleven.
From December 1996 to April 1997 he was held in cell no. 67. There were fifteen inmates.
From April to May 1997 he was in cell no. 50. It accommodated seventeen persons.
From May 1997 to April 1998 he was held in cell no. 67. The number of detainees was fifteen.
From May to September 1998 he was accommodated in cell no. 73. There were fourteen inmates in it.
For one week in September 1998 he stayed in cell no. 72, which held eight inmates.
From September 1998 to April 1999 he was in cell no. 58. The number of inmates was twelve.
In May 1999 he was held in cell no. 95, which accommodated twelve detainees.
From May to December 1999 he was in cell no. 168 in the prison hospital. This cell measured 5 m by 2.5 m and there were four inmates in it.
On nine occasions the applicant was held in a cell designed for solitary confinement. This room measured 2 m by 2.5 m. It was cold and damp. For the toilet there was a hole in the floor from which rats came out during the night. 23.  The Jõgeva Arrest House was built in 1984 and is located on the first floor of the regional police headquarters, with windows facing south. There were eight cells in the arrest house which measured between 7.55 sq. m and 11.32 sq. m. On average, there were between two and four inmates in a cell. The original size of the glass block windows had been 1.10 m by 3 m. In most of the cells the windows had subsequently been walled up for security reasons. The glass block windows were preserved in cells nos. 7 and 8. Each cell had one electric light. The cells were fitted with large bunk beds for sleeping and each inmate had his own sleeping place. In the cells there was a secluded toilet corner and cold water for daily hygiene. In 1999 the central-heating radiators were replaced with floor heating. In 2000 the ventilation system was renovated. There was a courtyard for walking and, where possible, inmates could take walks for one hour a day. Once a week inmates could take a shower. Once a week inmates could receive parcels and once a month they had the possibility of a visit. If medical aid was needed, it was called for from the town hospital.
Meals were provided three times a day in the cells, two of them being hot meals. In case of necessity dietary food was provided to the inmates.
Inmates were fully provided with bedclothes and hygiene articles (soap, toilet paper). Bedclothes were changed one a week or more frequently when necessary. 24.  Not all information concerning the various periods of the applicant’s stay in the Jõgeva Arrest House has been preserved. In so far as the information is available, the applicant was kept in the following cells.
From 5 May to 20 May 1997 he was kept in cell no. 4, measuring 10.7 sq. m. There were between one and four inmates in the cell.
From 5 October to 10 October 1997 he was in cell no. 5. The size of the cell was 10.9 sq. m and there were four to six persons in the cell.
From 27 February to 13 March 1998 he was again in cell no. 4. There were up to four detainees in the cell.
From 6 November to 13 November 1998 he was held in cell no. 6. The size of it was 10.9 sq. m and there were between two and four inmates in the cell.
From 21 January to 29 January 1999 he was held in the same cell. There were between three and five inmates in it.
From 12 February to 26 February 1999 he was again in cell no. 5. There were between three and five persons in the cell.
From 9 April to 20 April 1999 he was in cell no. 6. There were between three and five inmates in the cell.
From 10 August to 13 August 1999 he was in cell no. 5. There were three inmates in it.
From 17 September to 1 October 1999 he was in the same cell. There were between three and five persons in the cell.
From 26 November to 3 December 1999 he was again in the same cell. There were three to four persons in it.
There was no confirmation that the applicant had been in the same cell as a contagious tuberculosis carrier. Detainees with such a disease were held in the hospital of the Central Prison.
(b)  The Central Prison 25.  Until 1994 the Central Prison was the only pre-trial detention institution in Estonia alongside police arrest houses. In 1994 a new prison was built in Maardu to house under-age male prisoners. In 1996 and 1997 two sections for remand prisoners were built in Tallinn Prison, to which around 650 inmates were transferred from the Central Prison, allowing for an improvement of the conditions there.
The Central Prison was housed in the building of a sea castle built in 1840. In 1914 the building was converted into a prison. The cells in the prison had been rebuilt from the former cannon chambers and were designed for between two and sixteen persons. The outer wall of the castle was built of limestone and was about 1.5 metres thick. The prison’s windows were built where there had formerly been embrasures for cannons. Accordingly, the size of the windows and the natural light coming through them did not comply with the requirements for dwelling facilities. However, all windows could be opened and there was no problem with the inflow of air. The artificial lighting in the cells was sufficient. In 1997-1998 the heating system in most cells had been renovated.
In each cell there was a secluded toilet corner and access to cold drinking water, where it was also possible to wash oneself if necessary. At least once a week all inmates went to the sauna or could take a shower. The detainees were given bedclothes, which were changed once a week, or more frequently if necessary. Those who wished were provided with soap, washing powder and toilet paper by the prison. There was at least one hour’s walking time in fresh air every day. Inmates had an unlimited right to make appointments for meetings with the prison chaplain, social workers, doctors and the prison management.
For sleeping, the cells had double-tier bunks. There was at least one large table and chairs, the number of which depended on the size of the cell and the number of inmates. In the cells there were cupboards for personal belongings for each detainee. There was also a table and a stool in the punishment cells. Sleeping berths in the punishment cells were folded up and locked for the day.
Prisoners received three hot meals a day in the cells. The quality of the food was regularly checked by the prison doctor and administration. Persons with health problems could follow a special diet prescribed by the doctor. All detainees had the right to buy additional foodstuffs, tobacco products and articles of basic necessity at the prison shop and to receive parcels from visitors.
Prisoners could borrow books from the prison’s library. In addition to a couple of copies of newspapers subscribed to by the prison, the inmates could order newspapers and magazines at their own expense. In general, the prisoners were allowed to use radios or television sets in their cells. 26.  The prison hospital was in one of the wings of the Central Prison that was facing the land, where the walls were not as thick and the windows were larger. The natural light in the hospital was also better.
Detainees with active tuberculosis were treated in a separate ward of the hospital, which was renovated in 1997-1998. Patients with this disease were offered two hours of outdoor exercise every day. 27.  All persons in custody had to pass health checks when admitted to prison; these included an X-ray examination. Examinations carried out by the medical staff showed that more than half of the patients were infected before incarceration. 28.  In 1998 the Government decided that the prison should be condemned as the building was unsuitable for that purpose, and that a new prison should be built in Tartu. Following the completion of the new establishment, the Central Prison was closed down in 2002. 29.  During the applicant’s stay in the Central Prison, he was in fourteen different cells altogether, as well as four different hospital wards and five punishment cells.
(i)  The cells in which the applicant was held in the Central Prison 30.  From 25 June to 2 September 1996 he was in cell no. 89. The size of the cell was 36.4 sq. m and during the period concerned there were between twelve and fourteen detainees in the cell. The cell had a window measuring 97 cm by 175 cm.
From 2 September to 17 October 1996 he was in cell no. 141. The size of the cell was 7.4 sq. m and there were three detainees. The cell had a window measuring 95 cm by 175 cm.
From 17 October to 22 October 1996 the applicant was kept in cell no. 125. Its size was also 7.4 sq. m. The number of detainees was between one and three. The cell had a window measuring 95 cm by 175 cm.
From 22 October to 22 November 1996 and from 25 November 1997 to 28 November 1997 the applicant was in cell no. 78. The size of the cell was 37.6 sq. m and the number of inmates was between ten and fourteen. The cell had a window measuring 95 cm by 175 cm.
The applicant stayed in cell no. 67 for several periods: from 22 November to 20 December 1996, from 25 December 1996 to 2 February 1997, from 11 February to 10 April 1997, from 20 May to 28 October 1997, from 1 December 1997 to 11 February 1998, from 25 February to 30 April 1998 and from 13 July to 14 July 1998. The size of the cell was 37.6 sq. m and the number of detainees was between six and fourteen. The size of the window was 95 cm by 175 cm.
From 8 February to 11 February 1997 the applicant was in cell no. 58. Its size was 34.9 sq. m and the number of inmates was between eleven and fourteen. The cell had a window measuring 95 cm by 175 cm.
From 20 April to 20 May 1997 he was in cell no. 50. The size of the cell was 35.5 sq. m and the number of detainees was between eight and fourteen. The cell had a window measuring 95 cm by 175 cm.
From 23 October to 25 October 1997 and from 20 November to 25 November 1997 the applicant was in cell no. 131. The size of the cell was 7.4 sq. m and the number of inmates in the cell was two or three. The cell had a window measuring 95 cm by 175 cm.
From 25 October to 6 November 1997 he was in cell no. 87. Its size was 36.1 sq. m and the number of detainees was between twelve and fourteen. The cell had a window measuring 95 cm by 175 cm.
From 2 May to 26 May 1998 the applicant was kept in cell no. 64a. The size of the cell was 35.8 sq. m and there were between eight and twelve detainees in it. It had a window measuring 95 cm by 175 cm.
From 26 May to 13 July 1998 the applicant was in cell no. 71. Its size was 38.2 sq. m and it had between ten and fourteen detainees. The size of the window was 95 cm by 175 cm.
From 14 July to 1 September 1998 and from 1 October to 2 October 1998 the applicant was in cell no. 73. The capacity of the cell was 37.6 sq. m and it accommodated twelve to fourteen detainees. It had a window measuring 95 cm by 175 cm.
From 2 October 1998 to 5 February 1999 the applicant was held in cell no. 72. The size of the cell was 37.9 sq. m. There were between eight and fourteen detainees in the cell. The cell had a window measuring 95 cm by 175 cm.
The applicant was held in cell no. 95 for several periods: from 5 February to 8 February 1999, from 20 April to 6 May 1999 and from 14 May to 17 May 1999. The cell’s capacity was 33.1 sq. m and it had six to fourteen inmates. Its window measured 95 cm by 175 cm.
(ii)  The punishment cells in which the applicant was detained in the Central Prison 31.  While serving a disciplinary punishment from 20 December to 25 December 1996 the applicant was alone in punishment cell no. N-5. The cell had a window measuring 70 cm by 150 cm.
From 10 April to 20 April 1997 the applicant was alone in punishment cell no. N-8. Its size was 7.4 sq. m and it had a window measuring 70 cm by 150 cm.
From 28 November to 1 December 1997 the applicant was alone in punishment cell no. N-4. The size of the cell was 7.4 sq. m and it had a window measuring 70 cm by 150 cm.
From 30 April to 2 May 1998 the applicant was alone in punishment cell no. 1. Its size was 7.4 sq. m and it had a window measuring 70 cm by 150 cm.
From 3 September to 9 September 1999 he was held alone in punishment cell no. N-7. Its capacity was 7.4 sq. m and its window measured 70 cm by 150 cm.
(iii)  The wards in which the applicant stayed in the Central Prison hospital 32.  On 6 November 1997 the applicant was hospitalised for medical treatment. He was in prison hospital ward no. 153, which measured 29.4 sq. m. There were five patients in the ward. The ward had a window measuring 230 cm by 165 cm.
The applicant spent several periods in hospital ward no. 154: from 6 November to 20 November 1997, from 14 September to 1 October 1998, from 8 February to 20 April 1999 and from 6 May to 14 May 1999. The size of the ward was 29.4 sq. m and it housed five patients. It had a window of 230 cm by 165 cm.
From 11 February to 25 February 1998 the applicant was in hospital ward no. 177. It measured 26 sq. m and there were four patients in it. It had a window of 230 cm by 165 cm.
From 17 May to 3 September 1999 and from 9 September 1999 to 9 March 2000 he was in hospital ward no. 168. The size of the ward was 15.5 sq. m and there were two to three patients in it. It had a window measuring 230 cm by 165 cm. 33.  According to the applicant’s medical records, he was healthy in March 1997. 34.  In November 1997 cirrhosis of the liver arose as a complication of hepatitis B and C, from which he had suffered in 1994. The applicant was admitted to Tallinn Central Prison hospital with liver damage from 6 November to 20 November 1997.
On 11 February 1998 the applicant was again hospitalised and was further diagnosed with hepatitis B and C. He stayed in the prison hospital until 25 February 1998.
His further stays in the hospital lasted from 14 September to 1 October 1998, from an unspecified date in October to 6 November 1998 and from 7 May to 14 May 1999. 35.  In May 1999 the applicant was diagnosed with tuberculosis, which led to his hospitalisation from 17 May to 22 December 1999. According to a medical certificate, he was suffering in addition from cirrhosis and hepatitis B and C. 36.  Examinations conducted in March and September 2000 revealed that the applicant was no longer in need of special treatment. 37.  Following the applicant’s release, in November 2000, from Murru Prison where he was serving his sentence, the Tartu County Expert Committee on Disabilities established, in a decision of 28 February 2001, that the applicant’s capacity to work had been reduced by 80%. The cause of this incapacity was general illness. The experts assessed his invalidity as being of the second degree. The decision was effective until 31 March 2002 and a new expert assessment was scheduled for 6 March 2002.
In taking their decision, the experts relied on the information on the applicant’s state of health provided by his family doctor and the medical records submitted by the Central Prison hospital.
II.  FINDINGS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT (CPT) 38.  In July 1997 the CPT carried out its first visit to Estonia. On 30 October 2002 it published a report of its visit, which contains the following findings concerning the Jõgeva Police District Arrest House and the Central Prison.
“ ... 26.  The CPT’s delegation visited eight police arrest houses. Conditions of detention were extremely poor in almost all of them.
... 30.  Very poor conditions of detention were ... found in the arrest houses in Jõgeva ...  Here also, the cells were frequently overcrowded and invariably poorly equipped, there was little or no access to natural light, and artificial lighting and ventilation were often woefully inadequate. ...
Nevertheless, it should be added that detained persons met at Jõgeva Arrest House indicated that staff in that establishment did what they could to alleviate the conditions of detention; for example, family members were allowed to bring packages at any time (rather than once a week, which was the case elsewhere), and detained persons without soap or toilet paper were provided with these items.
... 33.  In all the arrest houses visited, the delegation observed that the food supplied by the State to detained persons was very meagre in quantity.  Invariably, only one meal was provided per day; this was served at midday and usually consisted of bread and soup, which might on some occasions be accompanied by an egg or a piece of sausage.  Breakfast and supper each consisted merely of tea, which was not always provided with sugar ... In several arrest houses, staff members voiced concern about the inadequate amount of food provided, but added that the very low food allowance per detained person (reportedly 19 kroons in Tallinn and Tartu, falling to 12 kroons in Narva) made it difficult to improve the situation.  Not surprisingly, several detainees indicated that they relied heavily on food brought in by family members.
... 37.  ... The CPT was also concerned to learn that several detained persons who had been returned from the Central Prison to an arrest house alleged that their medical treatment for tuberculosis had been interrupted, allegations which were confirmed by health care staff in some arrest houses.  Such a situation is highly dangerous for both the prisoners concerned and the public at large. 38.  Depriving someone of his liberty brings with it the responsibility to detain him under conditions which are consistent with the inherent dignity of the human person.  The facts found in the course of the CPT’s visit show that, regarding persons placed in police arrest houses, the Estonian authorities are not fulfilling that responsibility.  Almost without exception, the conditions in the police arrest houses visited could fairly be described as inhuman and degrading.
... 60.  The CPT’s delegation examined in some depth the situation at the Central Prison in Tallinn, which is widely recognised as the most problematic establishment in the Estonian prison system.  Senior officials of the Prison Board referred to it as ‘a stone around our necks’.
... 61.  The Central Prison serves principally as a remand facility for the whole of Estonia and also comprises a prison hospital with a nationwide function. The prison moved into its current premises – an old naval fortress – as a temporary measure in 1914. The delegation was informed that, at the time of the visit, its official capacity was 1,100 (including 90 hospital beds). On the first day of the visit, the establishment was holding a total of 1,271 prisoners (including 60 women prisoners, 104 in-patients at the hospital and 107 sentenced prisoners assigned to work in the establishment).
... 64.  At the outset of the visit, members of the Prison Board identified three serious problems facing the Estonian prison system: a rising prison population, which had led to overcrowding; a lack of work for prisoners, approximately 80% of whom were unemployed; and difficulties in the field of prison staff.
... 73.  Finally, although the Central Prison shall be dealt with in a separate section of this report, the CPT must emphasise already at this point that many of the prisoners in that establishment were subject to a series of negative factors – overcrowding, poor hygiene conditions, an impoverished regime – which could certainly be described as inhuman and degrading treatment. 74.  The conditions of detention of remand prisoners at the Central Prison were intolerable.
First of all, the prisoners were being held in grossly overcrowded conditions; even the very modest standard applied in Estonia of 2.5 m² per prisoner was not being offered to the majority of remand prisoners. By way of example, cells measuring 35 m² were being used to accommodate 18 or more prisoners; one such cell in the reception unit was accommodating 28 recently admitted prisoners. The delegation also found six prisoners being accommodated in cells measuring 15 m² (in the women’s section). Reference should also be made to a suite of 12 cells, each measuring 3.3 m², found in section 7 of the prison. Most of them had a single occupant, but some were accommodating two inmates. In the CPT’s opinion, a cell of such a limited size is unfit to serve as accommodation for one prisoner, let alone two.
In many cells, there was little room for any furniture apart from bunk beds; at best there was a table and stools.  Indeed, living space was at such a premium that, in some cells, inmates did not have their own bed and, consequently, had to take turns to sleep. All of the cells were equipped with a lavatory and a wash basin.  However, the lavatory was not partitioned and prisoners had to resort to makeshift curtain arrangements to try and provide a modicum of privacy; further, these in-cell sanitary facilities were frequently in a very poor state of repair and dirty, as were the cell facilities in general.
Most cells had only limited access to natural light – often because cell windows were small and/or had been screened or covered – and ventilation was poor. As for the 3.3 m² cells in section 7, they did not have a window at all; consequently, they had no access to natural light and no evident means of ventilation. Further, allegations were heard that the prison’s heating system was not a match for Estonian winters. 75.  The CPT was also concerned to note that many remand prisoners had difficulty maintaining an acceptable level of personal hygiene.  Two factors contributed to this situation:  the prisoners were themselves often destitute, and they received virtually no assistance from the prison establishment.
 Washing powder was the sole item provided to prisoners in their cells, and soap was made available only during the weekly shower.  Prisoners without money or help from their families had to rely on the generosity of fellow inmates to obtain items such as lavatory paper, soap and toothpaste.  This situation was particularly resented by female remand prisoners at the Central Prison; they complained that they had even to manufacture their sanitary towels using rags.
Further, no assistance was provided to prisoners who did not have proper clothing at their disposal. 76.  The deplorable material conditions described above were compounded by the absence of anything which remotely resembled a regime.  The principal – practically the only – out-of-cell activity consisted of one hour of outdoor exercise every day. Inmates took their exercise in small groups, in facilities which were not large enough to enable them to exert themselves physically. Loud music was played during exercise periods, apparently in order to prevent any communication between inmates placed in different yards. The only other regular out-of-cell activity was a weekly 20-minute shower session. Visits from relatives or friends were subject to authorisation by the relevant investigating authority and, apparently, a rare occurrence.
As regards in-cell activities, they were limited to reading newspapers and books. In short, remand prisoners held at the Central Prison led a monotonous and purposeless existence, a situation which could last for months and, on occasion, for years.
... 99.  Medical staff in the Central Prison expressed alarm about the rising number of tuberculosis cases. Having regard to available information concerning the prevalence of tuberculosis in Estonian prisons, the CPT tends to agree that there is cause for major concern. Tuberculosis is a serious life-threatening condition if left untreated; prison authorities have a clear obligation to ensure adequate methods of detection and to provide treatment.
The screening procedures currently employed (i.e. fluorographic examination of the lung fields on entry to prison and at six monthly intervals) are effective in detecting cases of active pulmonary tuberculosis. However, in view of the rising prevalence of tuberculosis, consideration might usefully be given to the introduction of a more sensitive detection technique by using a tuberculin skin sensitivity test (such as the Mantoux test), in addition to fluorography. By combining these two techniques, a higher case detection rate could be achieved, in particular during the earlier stages of the disease. Further, in view of the high risk of transmission during custody in police arrest houses (where conditions are very conducive to air-borne infection), it would be highly desirable to have the tuberculosis screening process carried out at an earlier stage of a person’s deprivation of liberty.
... 101.  Hepatitis B transmission amongst inmates was also a source of concern for medical staff at the Central Prison; they indicated that, in their view, transmission was taking place through using non-sterile tattooing needles or penetrative sex between inmates.
... 103. The Prison Hospital provided in-patient care, covering a range of surgical and non-surgical specialities, to inmates from all prisons in Estonia.
The hospital’s health care staff were sufficient in number, comprising fourteen medical doctors and twenty-six nurses; they were all employed full-time at the hospital, and a shift system enabled them to provide a 24-hour emergency service. Further, medical staff were adequately trained and appeared committed to providing the best possible care to patients under the prevailing adverse conditions.  It should be added that medical and nursing files were well kept.
... 105.  Despite the efforts of medical staff, the material conditions in the hospital were such that care was seriously sub-standard. The hospital was both overcrowded (150 patients for a theoretical capacity of 90) and in a poor state of repair.
By way of illustration, up to eight patients were being accommodated in 27 m² rooms, with very limited access to natural light and inadequate ventilation. More generally, the premises as a whole were in a dilapidated state (flaking plaster and peeling paint, broken windows, uneven floors with broken surfaces, and potentially hazardous electrical wiring/installations), which rendered it practically impossible to clean and disinfect to hospital standards.
Patients’ rooms were not equipped with a call system; further, they were kept locked by prison officers, thus hampering access of health care staff to patients. 106.  The negative effects upon patients’ lives of the situation described above were exacerbated by the fact that, with the exception of those suffering from tuberculosis, patients were offered no outdoor exercise or other activities (reading, games, recreation). 107.  As regards inmates requiring treatment for pulmonary tuberculosis, they were held and cared for in similar conditions to those described in paragraph 105 above. In particular, they were accommodated in overcrowded, poorly-ventilated rooms. The only differences as compared to other patients were that they benefited from two hours of outdoor exercise every day and received a supplemented diet.
 The CPT has noted that, at the time of the visit, four additional rooms had been laid out to accommodate patients suffering from tuberculosis, but were not yet in service.  It appeared that they would offer a far more therapeutic environment: they were spacious, and had good access to natural light and ventilation.” 39.  In their responses to the CPT report, filed in June 1998, the Government submitted the following in respect of the general conditions in the Central Prison and its future:
“A reduction of the number of remand prisoners in the Central Prison can be made only by their transfer to the Tallinn Prison which is built according to modern standards. This can be done only within certain limits. In the remand unit of the Tallinn Prison up to 5 persons are kept in a cell for reasons of lack of available space.
The cells in the Central Prison from which the inmates are transferred to Tallinn Prison will remain in use and as a result the overcrowding of other cells will be reduced. Demolition of the cells which are less than 6 m² is programmed and they will soon be condemned.
The general conditions prevailing in the Central Prison will be improved step by step, dependent on resources, which are short at present.
•  Every inmate has his own mattress today;
•  During the period August 1997 to April 1998 19 cells have been repaired. During the preparation for last winter the heating system in 27 cells was repaired;
•  In July 1997 4 new wards were opened in the hospital’s tuberculosis unit; at the present time (according to the plan) the remaining wards of the tuberculosis and surgery units are under repair;
•  In the fourth quarter of the year 1997 the sauna in the tuberculosis unit was opened and a room for long-term meetings was built. The indoor gymnasium for the convicted was also opened;
•  In 1998 the disinfection-cell, the kitchen and dependencies (dish washing room, storeroom and corridor) were repaired.
...
The Estonian Prison Board is of the opinion that the Central Prison should be condemned as the building is unfit for the purpose. It was built as a naval fortress and was taken into use as a prison in 1914. It has also been shown that economically it is unprofitable to keep the Central Prison in use. The reasons are that:
•  the architectural layout of the building is impractical (large cells, insufficient lighting in cells, etc.)
•  technical facilities (the water supply, canalisation and the central heating piping) are derelict and to replace them would be too expensive
•  there is no proper ventilation
•  there is permanent humidity and damp in the building, because the prison is situated on the seaside.
It will be necessary to reallocate the prisoners at present detained in the Central Prison, For this reason it is planned to build a new prison in Tartu. The Government decided on 12 May 1998 to find the necessary funds and the construction work will start shortly.” 40.  In September 2003 the CPT carried out its latest visit to Estonia, during which the Jõgeva Arrest House was also inspected. On 27 April 2005 the CPT published a report on its visit. The report contains the following findings, in so far as relevant:
“ ... 26.  The material conditions under which detained persons (in police custody, on remand or sentenced) were being held in certain police arrest houses, including those in Kohtla-Järve and Narva, were appalling; conditions also remained very poor in Jõgeva.
Detainees were locked up 24 hours per day - with no outdoor exercise - in cells that were filthy, dimly lit (with no access to natural light, and poor artificial lighting) and severely overcrowded (up to 15 persons in a cell of 15 m²). [Footnote no. 18: In a number of cases, the levels of arrest house overcrowding in September 2003 actually exceeded those observed by the CPT in 1997 and 1999.] The unpartitioned lavatories – where persons were obliged to relieve themselves in the direct presence of their cellmates – exacerbated the effects of the very poor ventilation, rendering the already dank air nauseating. In many cases, persons were provided with no mattresses and blankets, and lacked basic personal hygiene products. The cumulative effect of the execrable material conditions and the impoverished regime could well be described as inhuman and degrading. This state of affairs was exacerbated by the fact that persons were being held under such conditions for prolonged periods (i.e. for up to three months and, on occasion, even longer).
... 28.  An impoverished regime – 24-hour in-cell lock-up – remained the norm for everyone detained in an arrest house. Of the six arrest houses visited by the delegation, Jõgeva was the only one where detainees were being offered the opportunity to take outdoor exercise, albeit only twice a week or so. Even if a particular establishment was equipped with yards, staff shortages were cited as reasons for not granting outdoor exercise to detainees. The promised enlargement of the 6 m² ‘yards’ at Tartu Arrest House had not taken place, and they remained unused.
As regards contacts with the outside world, the Internal Rules of Tallinn Arrest House permitted one two-hour visit once a week.  However, many persons detained at other arrest houses complained that they were allowed only one 15-minute visit per month.
... 53.  More generally, the CPT has noted that the average amount of space per remand prisoner in Estonia is 3 m². Such an average does not offer a satisfactory amount of living space; the Committee recommends that the Estonian authorities strive to maintain a standard of at least 4 m² of living space per prisoner in multi-occupancy cells, and that official capacities be calculated accordingly.
...”


10.  The applicant was born in 1972. When the application was lodged he was being held in Schrassig Prison. He is currently being held under a semi‑custodial regime in Givenich Prison. 11.  On 15 December 1998 the applicant was remanded in custody. 12.  In a judgment of 22 October 2001 the Criminal Division of the Court of Appeal sentenced him to fifteen years’ imprisonment, of which three years were suspended, for assault occasioning actual bodily harm, rape and false imprisonment accompanied by acts of torture, committed on 10 December 1998. 13.  The applicant was granted a divorce on 19 October 2000. He provided the Court with various judicial decisions given between 14 June 2001 and 13 April 2005 concerning his right of contact with his three minor children. 14.  While in prison the applicant submitted several requests for temporary leave of absence (“prison leave”), which are the subject of the present case. 15.  The applicant stated that he had submitted a request for prison leave to the Attorney General in October 2003. 16.  At the request of the counselling service’s psychologist the applicant explained on 16 October 2003 that he was requesting prison leave for one day and had no objection to being escorted while on leave. He stated that the reason for the request was to complete certain administrative formalities, which he detailed as follows:
“- go to a photographer or photo booth to obtain passport photos;
- go to the Transport Ministry to renew my driving licence (medical certificate already obtained);
- go to the Embassy to renew my consular registration card;
- go to see Mr [B.] at Luxembourg police station, Investigations Division, to pick up an envelope containing documents needed by a former client;
- go to see the manager of [B.] bank in Esch/Alzette;
- go to the taxation office in Esch/Alzette;
- meet a group of friends in a restaurant near Esch/Alzette;
- go to my flat in Differdange to collect the remaining documents for the same client;
- take some measurements for items I might make in the [prison] workshop;
- go to Differdange town hall for a personal interview with the mayor;
- go to the home of Mrs [S.] in Luxembourg to meet her husband;
- go to my lawyer’s office to hand over the missing documents for my former client;
- if possible, go to the bookshop near [S.]’s house.”
In his letter, the applicant stated further:
“... Unfortunately, the civil damages are still far from being paid, as I have not even had enough funds to make a down-payment. At the moment I am still engaged in repaying my loans and other debts to the various authorities under the arrangements entered into with the legal service in order to avoid an unending series of seizures of my property. ...” 17.  On 29 October 2003 a psychologist issued a certificate (confirmed on 25 November 2003 by a second psychologist) stating that the applicant had begun a course of psychotherapy on 19 May 1999 which had been discontinued on 30 September 2002 for reasons beyond his control. The psychologist stressed that the applicant had been anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending. 18.  On 5 November 2003 the Attorney General’s representative sent a memorandum to the prison governor worded as follows:
“...please inform the prisoner Thomas Boulois
that by decision of the Prison Board
[the] request for prison leave ... [is] refused in view of the risk of deportation (an application was made to the Ministry of Justice on 25 June 2003, but no decision has yet been taken). There is also a risk that the prisoner might abscond, given that he has failed to reflect on his crime. Before being allowed any privileges he must begin to pay the civil party.” 19.  On 17 January 2004 the applicant reiterated his request, stating that the reasons and the itinerary for the day’s prison leave remained the same. On 27 January 2004 his lawyer submitted arguments in support of the applicant’s request and concluded as follows:
“... granting [the applicant] a day’s prison leave during which he could begin to put his affairs in order with a view to leading an independent life [outside] prison, [would] not only aid [the applicant’s] rehabilitation and reintegration into society, but [would] also enable him to start paying compensation to the civil party as quickly as possible. ...” 20.  On 17 March 2004 the Attorney General’s representative sent a memorandum to the prison governor containing the following passages:
“... please inform the prisoner Thomas Boulois
that by decision of the Prison Board
the decision of 5 November 2003 refusing his request for prison leave ... remains valid.” 21.  On 25 May 2004 the applicant lodged an application with the Administrative Court (tribunal administratif) for judicial review of the decisions of the Prison Board of 5 November 2003 and 17 March 2004. 22.  At a hearing held on 6 December 2004 the Administrative Court raised of its own motion the question whether it had jurisdiction to examine the application for judicial review. The Government, which had not raised an objection alleging lack of jurisdiction, left the matter to the discretion of the court. 23.  On 23 December 2004 the Administrative Court ruled that it did not have jurisdiction to examine the application for judicial review, for the following reasons:
“... A distinction must be made between administrative measures relating to the treatment of prisoners in prison (such as a decision to place them in a more secure part of the prison, and in particular imposing a strict confinement regime – see Administrative Court ruling no. 14568 of 10 July 2002), which are taken in the context of enforcement by the prison service, and decisions which may alter the nature or scope of a sentence handed down by the ordinary courts, which are to be classified as judicial rather than administrative decisions.
In the instant case it must be acknowledged that the granting or refusal of the privilege of prison leave constitutes a measure which alters the ‘scope’ of the sentence imposed on the applicant by the ordinary court.
Hence, the two decisions in question are judicial in nature.
Accordingly, bearing in mind their nature as identified above, the impugned decisions cannot be the subject of an application to the administrative courts... .” 24.  On 14 April 2005 the Higher Administrative Court (cour administrative) upheld this ruling, as follows:
“The [applicant] submitted that the court erred in finding that it did not have jurisdiction to examine his application for judicial review, arguing that: no other remedy existed in respect of such refusal, with the result that section 2(1) of the Law of 7 November 1996 on the organisation of the administrative courts should be applied; the impugned decisions did not alter the scope of the sentence; the court had denied him justice in breach of Article [6 § 1] of the [Convention] by depriving him of a fair hearing.
... The [applicant]’s case concerns a request for prison leave, in other words, a decision which alters the nature of the execution of the sentence handed down by the ordinary courts and which should therefore be classified as a judicial rather than an administrative decision.
The expression ‘the scope of the sentence imposed’, used by the court, is not to be understood in the present case as the length of the sentence but as the manner of its execution in a broad sense.
The administrative court was therefore correct in ruling that it did not have jurisdiction to examine the application.
A finding by the administrative courts that they lack jurisdiction cannot be construed as a declaration of unwillingness on their part to rule on the issue; the allegation of a denial of justice should therefore be dismissed as unfounded.
Article [6 § 1] of the [Convention] is not applicable in relation to a body which has no power to rule on the merits. ...” 25.  On 11 August 2004 the applicant submitted a third request for prison leave, in the following terms:
“... I have successfully attended several courses run by the CEP-L [Chamber of Commerce] and would like to continue with a view to obtaining the corresponding diplomas.
The diplomas concerned are in accounting and computer (PC) use. I completed the previous courses successfully, but for the sake of feasibility it is now essential for me to be able to attend the courses of the autumn session at the CEP-L itself. ...” 26.  In a decision of 21 September 2004 the request was refused on the ground that the applicant could attend courses in prison and that he had made no substantial efforts to date towards paying compensation to the victim. The decision also referred to the reasoning of the decision of 5 November 2003. 27.  In a fourth request, submitted on 24 February 2005, the applicant observed, among other things, that he could not understand why, in view of the need for him to reintegrate into society, he had been refused permission to attend the final classes required in order to obtain the diplomas in accounting and computing. He added that the reason he had requested prison leave was to renew his identity papers and driving licence and make arrangements for the repayment of his debts to the various institutions and the civil party. 28.  On 23 March 2005 his request was refused for failure to give reasons. 29.  On 12 July 2005 a fifth request for prison leave (not provided to the Court) was refused on the ground that there was a risk that the applicant would not return to prison. 30.  On 4 May 2006 a sixth request for prison leave (not provided to the Court) was refused on the ground that the applicant had been making no efforts, in particular with regard to paying the civil damages, and was refusing to abide by the conditions imposed on him. 31.  Following the refusal of this request, the applicant applied to the Attorney General’s Department on five occasions between 10 May and 29 October 2006. He requested assistance in putting in place a repayment plan appropriate to his circumstances and the demands of the civil party, and sought an explanation of the requirements he was expected to meet with a view to his reintegration in society, so that he could take steps to comply with them. On 6 November 2006 the Attorney General’s representative decided that he would not, as matters stood, reply to the various letters, which did not call for any comment. 32.  On 20 November 2006 the Attorney General acknowledged receipt of a request from the applicant for an interview and said that he would meet him during one of his forthcoming visits to the prison. The applicant claimed that the meeting had never taken place. 33.  According to the case file, in April 2009 the applicant was transferred to a semi-custodial regime in Givenich Prison, where he carried on paid work as a cook. On 10 February 2010 he started up a business as a sole trader.


6.  The applicant, Mr Vörður Ólafsson, is an Icelandic national who was born in 1961 and lives in Reykjavik. 7.  The applicant is a master builder and is a member of the Master Builders’ Association (“the MBA”). Under the Industry Charge Act (Law no. 134/1993 – “the 1993 Act”), he was under an obligation to pay a levy known as the “industry charge” to the Federation of Icelandic Industries (“the FII”), an organisation of which the applicant was not a member and to which the MBA was not affiliated. The 1993 Act provided that a charge of 0.08% should be levied on all industrial activities in Iceland as defined in the Act. The definition included all activities coming under activity code numbers enumerated in an appendix to the Act. Private-sector enterprises not covered by the code numbers were not subject to the industry charge. This was the case, for example, for enterprises in the meat-processing, milk-processing and fish-processing industries. Other enterprises in the food and drink industry were covered. Enterprises entirely under public ownership or established by special statute were not covered (section 2). Revenues from the industry charge were to be transferred to the FII, and were to be used for the promotion and development of industry in Iceland (section 3). The State Treasury was to receive 0.5% of the charge collected in order to cover the costs of its collection (section 1). 8.  More than 10,000 persons (legal persons and self-employed individuals) paid the industry charge. The FII had between 1,100 and 1,200 members (enterprises and self-employed individuals). 9.  The Government supplied copies of the FII’s reports to the Ministry of Industry regarding the disbursement of the industry charge for the years 2000, 2003 and 2006. 10.  The FII’s report for the year 2003 (dated 4 July 2004) stated:
“The Federation’s accounts have not indicated whether particular operational items are paid for with funds from membership fees, capital income or the industry charge, because an overwhelming proportion of its work benefits industrial companies whether they are members of the Federation or not. The Ministry of Industry has not expressed any reservation regarding this arrangement, and legislation concerning the industry charge imposes no other requirements.
The Federation and the Ministry of Industry are, however, in agreement about the requirement for a more detailed account of how the industry charge is disbursed, and that has been done in this report.” 11.  Under the title “Disbursement of the industry charge in 2003 according to the Federation’s accounts”, the report included a table showing the “Income and expenditure according to the Federation’s audited accounts for the year 2003”. In a separate column the table indicated the percentage of funds originating from the industry charge in relation to each item and sub-item. This included the following items: “Operating profits” and “Operating expenses”. It also detailed “Further itemisation of disbursement of the industry charge according to the accounts”, namely: (1) “Wages and related expenses”; (2) “Meetings and conferences”; (3) “Promotional activities”; (4) “Publications”; (5) “Branches and special projects”; and (6) “General and administrative expenses”.
For each of these sub-items the report contained explanatory notes, providing information on the treatment of members as compared with non-members. For example, under sub-item (1) it was stated that 2.5 of the 20 man-years concerned work that benefited members only. With reference to sub-item (3) it was stated that FII exhibitions were open to everyone and that FII members enjoyed a discount on participation fees. Under sub-item (5) it was stated that non-members could access the quality management project but would be charged a higher fee than members. 12.  From the table it appears that in 2003 the FII’s operating revenues totalled 315,800,000 Icelandic krónur (ISK), of which ISK 197,359,000 had originated from the industry charge transferred to the FII by the State Treasury; ISK 84,973,000 from membership fees; and ISK 33,468,000 from other income. That same year, the operating expenses had totalled ISK 289,654,000, of which ISK 234,617,000 (81%) had been spent on public projects (comprising ISK 197,359,000 derived from the industry charge and ISK 37,258,000 from membership fees and other income). 13.  The Government explained that in fulfilling its role and objectives of promoting Icelandic industry pursuant to section 3 of the 1993 Act, the FII notably worked to develop and protect the image of the industry, allocated large amounts of the funds obtained though the industry charge to training, gave opinions on behalf of the business community on draft legislation and regulations in the sphere of environmental affairs, and instilled in public authorities the need to observe restraint in public procurement and to observe clear and transparent tender rules. 14.  At the material time, the applicant paid the following amounts in industry charge for the years indicated: for 2001 ISK 23,023 (255 euros (EUR)); for 2002 ISK 20,639 (EUR 229); for 2003 ISK 12,567 (EUR 139); and for 2004 ISK 5,946 (EUR 66). 15.  On 8 November 2004 the applicant lodged proceedings against the State with the Reykjavik District Court, requesting an order to exempt him from the charges imposed on him in respect of the years 2001 to 2004. 16.  By a judgment of 13 July 2005, the District Court found in favour of the State and dismissed the applicant’s action. 17.  The applicant appealed to the Supreme Court of Iceland, arguing, inter alia, that section 3 of the 1993 Act meant that all individuals and companies engaged in particular business activities had to pay membership fees to the FII, irrespective of whether they were members or not. The applicant considered that Article 14 of the Articles of the Federation, which provided for the membership charge, clearly reflected its nature in that, as was provided therein, FII members paying an industry charge which was transferred to the FII should have that part deducted from their membership fees. Thus, by the levy and collection of the charge, membership of the FII was in fact made compulsory for others, although they enjoyed no rights vis-à-vis the FII. Consequently, the industry charge was merely a membership fee to the FII. The applicant submitted that he was a member of the MBA, to which he paid his fees and through which he considered his interests to be best served, and he had no wish to be a member of the FII. The latter pursued policies with which he disagreed and which were contrary to his own interests. The compulsory membership of the FII was incompatible with his right to freedom of association as protected by Article 74 § 2 of the Icelandic Constitution and Article 11 of the Convention. The applicant also argued that by virtue of the 1993 Act, he was unjustifiably taxed in excess of other taxes and that, under the Act, a limited group was being taxed “for the benefit of another limited group or the restricted interests of others”. Finally, he submitted that the imposition of the charge amounted to discrimination in breach of Article 65 of the Constitution, as the taxation was dependent upon the ownership structure of an enterprise, and the enumeration of activity code numbers, on which the taxation was based, was haphazard in nature.
The State disputed the applicant’s submission that the industry charge constituted a membership fee to the FII. They argued that by law it was a tax levied by the State on particular groups of individuals and legal persons, in accordance with general and applicable standards, without anything being required in return. By the same Act, the decision had been taken to have the charge transferred to the FII, which was to use it for the promotion and development of Icelandic industry. Such an allocation of tax revenues to an association provided for by law did not mean that those who paid the relevant tax were thereby obliged by law to become members of it. The charge was not expected to be used for the benefit of the members alone, but for the benefit of all industries and industrial development in Iceland, under the supervision of the Ministry of Industry. Any discounts on membership fees were decided unilaterally by the FII, without any connection to the assessment and collection of the charge. The State also denied that the 1993 Act involved discrimination between persons who were in the appellant’s situation and those who enjoyed an exemption from the charge. It was a reasonable and objective arrangement to exempt public enterprises from the charge, and it was in the nature of things that the considerations that applied to companies under public ownership were different from those relating to private enterprises. The State also argued that public support for industry and industrial development sometimes took the form of launching industrial activities that others were not capable of initiating. Finally, the number of publicly owned industrial enterprises had been greatly reduced in recent years. The State also disputed the allegation that the enumeration of activity code numbers governing the taxation had been haphazard. 18.  By a judgment of 20 December 2005, the Supreme Court, by four votes to one, rejected the applicant’s appeal and upheld the District Court’s judgment. It held as follows:
“As mentioned in the District Court’s judgment, the Supreme Court rendered a judgment on 17 December 1998 in case no. 166/1998, Gunnar Pétursson v. the Republic of Iceland, published at page 4406 of the Court’s Reports for that year. The appellant in that case requested an exemption from his liability to pay the industry loan fund charge and the industry charge for the years 1995 and 1996. He based his case on arguments that are to a significant degree identical to those invoked by the appellant in the present case. The Supreme Court accepts the view of the respondent in that the above-mentioned case must be regarded as the precedent in the case now to be determined, to the extent that the issues raised by the appellant in support of his present claim were determined in that case.
In the earlier case the appellant, as here, maintained that as a result of his liability to pay the industry charge, which is to be transferred to the Federation of Icelandic Industries, he was obliged to be a member of the Federation. The Supreme Court mentioned in its judgment that although the charge was transferred to the Federation, it was to be used for a certain purpose (see section 3 of the 1993 Act), and did not constitute a grant to the Federation. The use of the revenues was subject to the supervision of the Ministry of Industry. The Court accepted that this arrangement did not involve obligatory membership of the Federation of Icelandic Industries in breach of the Constitution and the European Convention [on Human Rights]. It also noted that even if the Federation of Icelandic Industries had exceeded the boundaries laid down in the [1993] Act, this could not have the effect of exempting the appellant from paying the charge. With this in mind, and in other respects by reference to the grounds stated in the contested judgment, the Court must reject the conclusion that the appellant’s arguments in this regard may lead to a granting of his request. Bearing in mind that the Federation of Icelandic Industries is under a legal duty to use the revenues from the industry charge for promoting Icelandic industries and industrial development, and consequently for the benefit of the activities being taxed, the Court cannot accept that the legislature thus exceeded its powers.
The appellant submits that equality was not respected, since enterprises under public ownership may be exempted from the charge. As regards this argument, it must be noted that various factors distinguish enterprises under public ownership from privately owned enterprises, and in various fields their taxation is governed by different considerations, as seen in Icelandic tax legislation in general. In his written submissions, the appellant did not present a comparison of his situation vis-à-vis any particular public enterprises. It has not been established that any discrimination has taken place between the appellant and the parties to whom the exemptions of the [1993] Act apply. Finally, the appellant bases his request on the assertion that the activity code enumeration, by reference to which taxation under section 2(1) of the 1993 Act takes place, is haphazard in nature. The charge is levied on industry, subsequently defined as any activity coming under the activity code numbers enumerated in the classification of Icelandic business activities in an appendix to the 1993 Act, as amended by Law no. 81/1996. Industry, thus defined, does not only cover manufacturing industry, but also processing and services, including the construction industry. This defines the activities to be included under the term ‘industry’ within the meaning of the [1993] Act, distinguishing them from other fields of economic activity, including activities that have developed within the fields of agriculture and fishing. Such classification of economic activity has furthermore been recognised as a basis for other forms of taxation other than the industry charge. The appellant’s claim cannot be granted on the basis of the arguments presented.” 19.  The dissenting member of the Supreme Court, Mr Justice Ólafur Börkur Þorvaldsson, gave a separate opinion containing, inter alia, the following reasons:
“I
The original Industry Charge Act was Law no. 48/1975. It was stated in the explanatory notes to the draft law that it had been submitted in accordance with a recommendation of the FII, the National Federation of Craftsmen, and the Union of Icelandic Cooperative Societies. These provided a detailed report, which apparently was adopted verbatim in the explanatory notes. It included the observation that ‘... it may be noted that industrial enterprises and self-employed persons in industry collect various taxes for public authorities, both from their employees and from the consumers. The tax collection they carry out and are responsible for amounts to thousands of millions annually, entirely without remuneration. It therefore seems reasonable that the State should undertake to collect, by way of compensation for these parties, a charge which amounts to only a small fraction of what they collect for the State. This source of revenue should create a financial basis for more active participation by professional federations within Icelandic industry in shaping future industrial development’. The Act also contained a provision similar to that of the Act now in effect, that the Ministry of Industry should be sent an annual report on the use of the revenues derived from the charge. In this context, it was mentioned in the explanatory notes that this was a ‘provision intended to ensure that public authorities will be given a reasonable account of how the industry charge is used’.
Law no. 48/1975 was superseded by the present Law no. 134/1993. It was stated in the explanatory notes to the [1993] Act that those liable for the charge would be the same as before, but a system of reference to activity code numbers in accordance with the business activity classification of the Bureau of Statistics was adopted in order to ‘remove any doubt as to who are liable for this charge’. It was furthermore provided that the revenues derived from the charge should be transferred to the FII in their entirety, whereas under the previous Act they had been distributed between the Union of Icelandic Cooperative Societies, the Canning Industry Sales Office, the Federation of Icelandic Industrialists and the National Federation of Craftsmen. At the same time the tax base was changed, since the municipal business tax, on which the level of tax had previously been determined, had been abolished.
II
According to the Articles of its Statute, the FII is a federation of enterprises, self-employed persons, trades and master builders’ associations, who jointly wish to pursue common goals as enumerated in Article 2. This Article states the purpose and role of the Federation in ten points, as involving the promotion of Icelandic industries in various ways and supporting the members by all the means which are detailed therein. According to the documents submitted, the association involves itself with political issues, for example as regards membership of the European Union and taxation in various fields. Pursuant to Article 8, each member of the Federation enjoys voting rights at its meetings in proportion to his paid membership fees. It is provided in Article 14 that the membership fees are a maximum of 0.15% of the previous year’s turnover, but the board of the Federation may decide to collect lower membership fees. The provision goes on to state that ‘[p]arties paying an industry charge that is transferred to the Federation shall have that part recognised, and deducted when their membership fees to the Federation are calculated. If the industry charge is no longer levied, this deduction shall automatically be abolished. The voting right of each member shall be calculated on the basis of his paid membership fee. Management and decision-making within the Federation is, as generally within associations, the responsibility of its board and the managing director’.
Documents submitted from the FII relating to the period to which the [applicant’s] requests pertain do not contain a clear breakdown of how the industry charge is used. It also appears from a comment in the Federation’s reports on the use of the charge for the years 2002 and 2003 that the Federation does ‘not keep separate accounts of whether the individual elements of the Federation’s operations are financed by monies derived from membership fees, capital income, or the industry charge’. A similar declaration on this point is found in the report to the Minister in respect of the year 2001, but a report for 2004 is not in the case file. The Federation’s reports to the Minister are also in other respects similar from year to year. In fact the case file seems to permit the inference that part of the charge is used for the general management of the Federation. It cannot be seen from the submissions in this case that the Minister of Industry has made any observations concerning the use of the charge, and in a letter to the Master Builders’ Association of 15 February 2002, following complaints relating to the use of the charge, he expresses the following opinion: ‘As can be clearly seen from the Industry Charge Act, the FII has the unrestricted power to decide how the charge is allocated, and the Ministry of Industry cannot interfere with this as long as it remains within the framework of the law.’ It can be seen from the submitted reports of the FII for the periods to which this case relates that the arrangement has been used for granting those members of the Federation who pay the industry charge a discount on their membership fees equal to the amount of the charge. As an example, the following comment in the Federation’s report to the Minister of Industry for 2003 may be quoted: ‘It may be pointed out that members who pay the industry charge have it deducted in full from their membership fees to the Federation. It would not be considered proper that companies within the Federation that are liable to the industry charge should pay more to the Federation’s activities than companies that are members, but not liable to the charge. In this way all the member companies of the Federation make equal payments to the Federation, irrespective of whether they are liable to the industry charge or not. On the other hand other companies, remaining outside, only pay the industry charge and thus make a contribution to the general protection of the interests of Icelandic industries.’
III
Provisions on freedom of association are found in Article 74 of the Constitution ... They contain more detailed rules on freedom of association than those directly expressed in Article 11 of the Convention ... Article 74 § 2 of the Constitution provides: ‘No one may be obliged to be a member of any association. Membership of an association may, however, be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.’
As noted above, the purpose of the industry charge is, according to the 1993 Act, the promotion of Icelandic industry, but it is also expressly provided that only the part of the charge corresponding to the cost of its collection is to be transferred to the State Treasury. The remainder is transferred to the FII, to be used as the Federation decides. It also seems that an unspecified proportion of the charge is used for the general activities of the Federation as its board may decide. It can furthermore not be seen from the provisions of the 1993 Act that the Minister of Industry is adequately empowered to ensure that the charge is used in the manner provided for in the Act; in this regard, the Minister simply receives the reports of the Federation. For these reasons the provisions of the 1993 Act cannot be regarded as ensuring that the charge will be used for the activities the Act requires.
The payment of membership fees to an association is generally a chief obligation of the members of an association that requires such payments. The applicant is a member of the Master Builders’ Association. Neither he nor his association is a member of the FII. The applicant does not agree with the Federation’s objectives in various fields, considering, as mentioned in the contested judgment, that the Federation acts contrary to his interests, and indeed also contrary to those of many others within industry who also pay the industry charge without being members of the Federation. Nevertheless, by virtue of the 1993 Act, the [applicant] is bound by a duty to pay the charge, which, as described, is transferred to a free association with the purpose of protecting the interests of those active in Icelandic industries and those of its members, as these interests are assessed at any particular time by a decision of the managing director and the board, without any significant involvement of public authorities.
When considering the above and the history of the 1993 Act, and in view of the use of the charge, without objection, for the general activities of the Federation, the arrangement provided for in the Act must be seen as involving, in fact, a duty on the part of the appellant to take a significant part in the Federation’s activities without his agreement. The above provisions of Article 74 § 2 of the Constitution, concerning people’s rights to remain outside associations, must be interpreted as prohibiting an arrangement such as provided for by the 1993 Act, unless that arrangement fulfils the requirements laid down in the second paragraph of the Article. The FII is not an association engaged in activities of the kind referred to therein. For this reason in itself, the appellant’s request for an exemption from his liability to pay the industry charge for the years 2001 to 2004 should be granted, and the respondent should be ordered to pay the appellant the costs of the case in the District Court as well as before the Supreme Court.”


6.  The applicant was born in 1964 and lives in Batman. 7.  On 7 February 1993 the applicant was taken into custody in Batman by police officers from the Batman Anti-Terrorist Branch and he was held in custody until 5 March 1993. 8.  On 5 March 1993 the Batman Criminal Court ordered the applicant’s remand in custody. 9.  On 6 April 1993 and on 10 October 1994 the Public Prosecutor at the Diyarbakır State Security Court filed two different bills of indictment accusing the applicant of being a member of an illegal terrorist organization and undermining the integrity of the State. 10.  On 5 May 1993 the State Security Court commenced the trial against the applicant and twenty-one other suspects, and prolonged the applicant’s detention. 11.  On 1 December 1995, the State Security Court convicted the applicant under Article 125 of the Criminal Code, and sentenced him to life imprisonment. The charges had been brought under Articles 168 and 125 of the Criminal Code. 12.  Thereafter, the Court of cassation quashed the judgment three times, remitting it to the first-instance court, which reached the same conclusions as before:
–Court of Cassation decisions quashing the judgments on 9 July 1996, 31 January 2000 and 2 April 2001;
–the repetitive State Security Court decisions on 11 June 1999 (after numerous hearings), 28 September 2000 (after numerous hearings in the applicant’s absence) and 31 January 2002 (also after numerous hearings). 13.  On that latter date, the State Security Court convicted the applicant under Article 168/2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. He was released the same day. 14.  The applicant did not appeal against this judgment. On 7 February 2002 it became final.


5.  The applicant was born in 1952 and lives in Poltava. 6.  On 9 June 2004 the applicant was arrested in connection with criminal proceedings against him and two women, D. and O. In October 2004 the applicant was released under written obligation not to abscond. The criminal proceedings were discontinued in 2008 for lack of corpus delicti in the actions of the applicant and the other accused persons. 7.  As established by the domestic courts, between 10 and 18 June 2004 the applicant was held in the ITT. In the morning of 11 June 2004 the applicant was escorted to the local court for a hearing concerning the preliminary measure to be applied in his respect. He returned to the ITT in the afternoon on the same day. 8.  In January 2007 the applicant lodged a civil claim with the Oktyabrskyy District Court of Poltava (“the District Court”) against the ITT and other authorities seeking compensation for non-pecuniary damage sustained owing to the inappropriate conditions of his detention in the ITT. 9.  The applicant claimed that throughout the period of his detention in different cells of the ITT the conditions of his detention had been contrary to domestic legislation and Article 3 of the Convention. He stated that: he had not been given a chance to wash himself or clean his teeth as he had not been provided with hygiene products; he had had to sleep on wooden or metal bunks without a mattress or bed linen; every night he had been bitten by insects, putting him at risk of being infected with HIV or other illnesses from the other inmates; instead of a spoon he had been given a small utensil which had made it impossible to eat; he had never been allowed outside exercise and had had no access to fresh air; the toilets in the cells had offered no privacy as they were not properly partitioned; and every morning and evening he and the other detainees had been strip-searched in each other’s presence. In particular, the applicant and the other detainees were ordered to undress, go out of the cell to the corridor and enter a metal cage. During the body search the applicant was pushed with a truncheon and required to face a wall and spread his buttocks. 10.  Further to the applicant’s requests, the District Court questioned the two women, D. and O., who had been held in the ITT during the same period. Owing to the rotation of the detainees, D. was held in the same cells (nos. 3 and 5) as the applicant but on different days. 11.  When questioned in the court, D. submitted that she and other detainees had not been provided with bed linen; the cells had been infested with biting insects, making it impossible to sleep; she had been regularly strip-searched (apart from the applicant); she had not been provided with hygiene products; she had had no outdoor exercise; the utensil for eating had been too small, with the result that the persons using it could not avoid touching the food with their fingers; and the toilets were not properly partitioned. 12.  When questioned in court, O. explained that she had not been provided with bed linen, an appropriate utensil for eating or hygiene products; she had had no outdoor exercise; she had been bitten by insects; and no disinfection measures had been carried out. 13.  Further to the applicant’s requests, the District Court also questioned the applicant’s wife and other persons who saw him and talked with him during the impugned period of his detention or afterwards. All the witnesses were examined in the presence of the applicant. 14.  The applicant also submitted that his allegations could be corroborated by the detainees who had been held in the same cells simultaneously with him. He asked the court to have the ITT submit relevant detention records in order to identify his cellmates and summon them as witnesses. The District Court requested the records from the ITT. The ITT submitted the records concerning the detainees in the cells but those records did not specify the personal information necessary to identify and summon the cellmates. The applicant further demanded that the court inspect the cells in which he had been held in order to verify the facts in dispute. That request was refused and the District Court examined photographs of the ITT provided by the defendants. 15.  During the hearings the defendants submitted that the applicant’s contentions had been unsubstantiated. They argued, in particular, that the strip-searches had been carried out in accordance with domestic regulations, the applicant had had opportunities to receive the necessary products from his relatives, disinfection measures had been carried out twice a month as confirmed by the relevant records, and the physical conditions had been appropriate, as confirmed by the photographs taken on the premises of the ITT. 16.  On 7 June 2007 the District Court dismissed the claim as unsubstantiated. It noted that there was no evidence to suggest that the applicant had sustained any non-pecuniary damage, that there had been any unlawful actions or inactivity on the part of the defendants or that they were guilty of any civil wrongdoing. It pointed out that the applicant’s allegations were supported by statements of witnesses who had no direct experience of the applicant’s personal situation in the ITT. On the other hand, it noted that the record of the disinfection measures carried out in the ITT disproved the applicant’s allegations concerning inappropriate sanitary conditions. It also had regard to the domestic regulations concerning body searches of individuals held in temporary detention centres. 17.  The applicant appealed, claiming that the District Court had failed to take the necessary measures to identify and question his cellmates; it had groundlessly disregarded the statements of D. and O., who had been detained in the ITT during the same period, whose direct experience was relevant to the facts of the case. In particular, witness D. was held in the same cells, though on different days during the period under examination, and her submissions concerning the physical conditions of detention were identical to those of the applicant. The court had not inspected the premises of the ITT. The applicant further emphasised that the practice of strip-searches was contrary to Article 3 of the Convention. He referred to the Court’s judgments in the cases of Iwańczuk v. Poland, (no. 25196/94, 15 November 2001) and Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003‑II). He insisted that there had been no reason for strip searches to be carried out twice a day, yet the District Court had considered that practice justified. The applicant argued that by ignoring the Convention requirements on that matter the District Court had failed to respect the Constitution, according to which the Convention was a part of the domestic law. 18.  On 31 July 2007 the Poltava Regional Court of Appeal upheld the judgment of the District Court in the presence of the applicant. It noted that, according to the official records submitted by the defendants, during the period at issue the cells in the ITT had been disinfected twice a month; the applicant had been visited by his lawyer; on 13 and 15 June 2004 his wife had given him parcels containing toilet paper, toothpaste, toothbrush and soap. The strip-searches had been carried out in accordance with the internal regulations adopted by the Ministry of Internal Affairs. The photos submitted by the defendants showed that the toilets in the cells had been properly partitioned, and the exercise yard and the ventilation system had been available. On the other hand, the applicant had not submitted any evidence to substantiate his claim that he had sustained non-pecuniary damage, that the defendants had engaged in unlawful actions or inactivity or that they were guilty of any civil wrongdoing. The applicant’s allegations were contradictory and could not be supported by the statements of the witnesses, as they had no direct experience of the conditions of the applicant’s detention. 19.  The applicant appealed on points of law, repeating the arguments he had raised before the court of appeal. In particular, he insisted that the courts had failed to take measures to identify and question his cellmates. They had not given valid reasons for disregarding the statements of D. and O., who had been detained in the ITT during the same period. The practice of strip searches contradicted Article 3 of the Convention as interpreted in the Court’s case law and the courts had failed to examine the case from that standpoint. 20.  On 28 January 2008 the Supreme Court rejected the applicant’s appeal on point of law noting that the decisions of the lower courts were lawful and substantiated.


5.  The applicant was born in 1971 and resides in the town of Armyansk, the Autonomous Republic of Crimea, Ukraine. 6.  The applicant instituted proceedings in the Novogrodovskiy Town Court of Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 – a State-owned enterprise – to recover salary arrears. 7.  On 25 April 2002 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded him UAH 4,087.29[1]. On 5 June 2002 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) initiated the enforcement proceedings. 8.  By a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. 9.  In August 2004 the judgment in the applicant’s favour was enforced in full.


5.  The applicant was born in 1956 and lives in Moscow. 6.  On 11 February 1995 the applicant and Ms B. got married. Ms B. already had a daughter, T., by a different father. On 23 December 1995 Ms B. gave birth to a daughter, A. In May 1998 the applicant moved out of his and Ms B.'s household. He continued to visit A. every week. From November 1998 Ms B. refused all contact between the applicant and the girl. His attempts to see A., with the help of the local custody and guardianship office, were unsuccessful. 7.  On 15 November 1998 A. was examined by M., the director of the psychological centre, Inex-92. M. stated that A. had a wide range of fears and displayed increased anxiety. On the basis of the tests conducted, it was established that A. had a close relationship with her mother and elder sister, but was distanced from her father and tended to reject him. 8.  On 9 December 1999 A. was examined by psychologist M-va, with a view to determining her emotional state following the long absence of her father. M-va's conclusion stated:
“1.  [A.] easily establishes contact with a stranger (psychologist) which proves that [she] has developed a feeling of safety. 2.  [A.] is in stable emotional state. The girl is cheery, clever, actively reacts to jokes, displays initiative in communication and in games. 4.  The following [A.'s] statements give rise to concern: “My father does not give me presents...”, “I feel good without him...” and “I don't want to see him”. 5.  The absence of the father is compensated by communication with a great-uncle and role-play games (used as a therapeutic means).” 9.  On 14 January 2001 the applicant's marriage was dissolved and Ms B. was granted full custody of A. 10.  On 22 February 2001 the applicant sued Ms B. for the obstruction of access to his daughter, A. 11.  On 26 April 2001 Ms B. filed a counter-claim seeking to divest the applicant of his parental rights. 12.  On 5 April 2001 Moscow Psychoneurological Dispensary No. 4 carried out a psychological examination of the applicant at the request of the Izmaylovskiy District Court of Moscow. The applicant consented to the examination. The panel of three doctors that examined the applicant stated that he might be suffering from paranoid personality disorder or “sluggish schizophrenia”. However, the conclusive diagnosis could only be made upon an in-patient examination. 13.  On 4 November 2001 A. was examined for a second time by M., the director of the psychological centre, Inex-92. M. stated that A. was highly communicative, intellectually developed and emotionally free. She also displayed a high degree of reflection, stability of mood, optimism and an interest in life. Various tests conducted revealed close relationships between A. and her mother and her elder sister and a rejection of her father. The main reasons for the rejection were expressed by A. as follows: “he offends T. (the elder sister)”, “it is bad with him” and “he is mean”. According to M., the latter statement could be understood to mean that the applicant had an excessive tendency to preach. M. further stated that A.'s rejection of her father was of a stable psychological and motivated nature, which might have been caused by a previous traumatic experience and was not inspired by another person. At the same time, A. willingly accepted the father of her elder sister, her maternal grandfather, sports coaches and a male psychologist. M. concluded that there had been a positive development in A. over the three years that had passed since her first examination: the fears had disappeared, the anxiety had eased, she displayed optimism and emotional stability. A phobic reaction to men, which had previously been observed, had also disappeared. M. stated that, in his view, it was necessary to take into account A.'s opinion concerning the choice of parent so as not to cause repeated psychological trauma. 14.  On 18 December 2001 M. examined the applicant. He noted that the examination was of a superficial nature and could not substitute a complete in-patient psychological examination. M. further stated that the examination did not reveal any psychopathic symptoms. However, taking into account A's persistent rejection of her father, he recommended exercising caution as regards their interaction so as not to cause repeated psychological trauma. 15.  On 8 February 2002 the Izmaylovskiy District Court of Moscow allowed the applicant to visit A. every first Sunday of the month between 12 noon and 2 p.m. in the presence of Ms B. The court relied, inter alia, on an expert's opinion which stated that contact with the father would not have a negative effect on the child. At the same time the court dismissed Ms B.'s counter-claim. 16.  The applicant appealed, requesting additional visiting hours. On 16 April 2002 the Moscow City Court dismissed his appeal and upheld the judgment. 17.  Ms B. failed to comply with the court order and the visit scheduled for 5 May 2002 did not take place. On 27 May 2002 the bailiffs' office opened enforcement proceedings. 18.  The applicant was not able to see A. on either 2 June or 7 July 2002. The bailiff summoned Ms B. and requested her to obey the court order on pain of an administrative fine. 19.  The applicant saw his daughter on 4 August, 1 September, 6 October, 3 November and 1 December 2002, and 5 January, 2 February, 2 March, 6 April, 4 May and 1 June 2003. The meetings were held in the presence of Ms B. who, according to the applicant, prevented A. from speaking to him, playing with him or accepting his gifts. 20.  On 17 October 2002 the applicant applied to the Izmaylovskiy District Court claiming additional visiting hours without Ms B.'s supervision. Ms B. requested that the applicant's access rights be terminated. 21.  On 17 February 2003 the Izmaylovskiy District Court held a hearing during which it granted Ms B.'s motion to adduce the following documents for examination: the medical report from the Psychoneurological Dispensary No. 4 on A.'s psychological state, psychologists' reports on her mental state between 1998-2001, reports from the school and the sports centre that A. had attended and the two reports from A.'s psychological examinations. The applicant submitted a detailed statement in support of his claim and requested an expert psychological examination of A. The court granted the request. It also granted the motion of the local custody and guardianship office to examine A. at the hearing. 22.  Following the examination conducted pursuant to the court order, expert K. stated the following.
a)  A. and her mother had a close relationship characterised by an emotional bond and cooperation. Ms B.'s attitude to her daughter was emotionally-open, she tried to understand and accept the child's emotional state and the relationship was based on the girl's interests. The mother undertook a democratic approach to parenting, which included a high level of verbal communication, the inclusion of the girl in discussions on family issues, the supporting of the child's interests and independence. She paid sufficient attention to the girl's physical and intellectual development.
b)  During the previous four years A.'s contact with the applicant had been of an episodic and formal nature and, as a rule, in the presence of third persons. The applicant substituted direct parental communication with moralising and attempts to obtain assurances of A.'s affection in front of third persons or to demonstrate Ms B's “undue” conduct. The values and behavioural motives of the applicant and Ms B. differed significantly. The applicant typically had formal relationships with people devoid of pronounced emotional involvement, which were based on certain rules, worked out in the course of his life. His approach to parenting was based on control, implying significant restrictions to the child's conduct. The applicant did not recognise his daughter's right to her own interests and independent choice. He poorly understood, and did not take into account, the girl's psycho-emotional and age-related behaviour.
c)  A child's “core personality” is formed at approximately five years old. A. had a sufficiently high level of intellectual development. However, her emotional sphere was much more labile than that of an adult and mostly depended on her environment. Her own values and opinions were being developed in the course of communication within the family. Furthermore, it is typical for children to copy the conduct of other persons, primarily the parent of the same sex. Therefore, it might be asserted that A.'s perspective of the issue was nearly identical to her mother's. From the point of view of further social adaptation, her female upbringing (mother, grandmother, elder sister) was sufficiently auspicious as it enabled a model of “female conduct” in society to be successfully put into practice. The remote negative result is that A. might have difficulties in building her own family, due to the absence of an adequate model of conjugal partnership. However, this applies to all children from single-parent families.
d)  The feeling of safety is a vital human need. The basic feeling of safety is provided by the family. In the first seven years of a child's life, communication with the mother is more important, irrespective of the child's gender. The child forms an image of the father through the prism of the mother's perception and his/her own communication with him, which A. had been deprived of for the last four years. At the time in question, A. saw the applicant as an incomprehensible stranger, whose actions had subverted her feeling of safety. Her mother and grandmother, in compliance with the court order, had effectively forced A. to communicate with her father, whom she did not love and was afraid of. As a result, A.'s immediate family (mother and grandmother) and relatives (father), instead of being the safety factor, became the danger factor. A.'s negative emotional stress, brought about by the meetings with her father was expressed in affective reactions (shouts, tears, obsessive movements) observed after the meetings. The increase of the duration of the meetings, especially in the mother's absence, would entail the risk of the child's persistent neurosis or depression, due to the impossibility of avoiding the subjectively distressing situation. The extreme manifestation of such a condition is self-aggression (suicidal tendencies, thoughts and actions).
e)  The so-called “female upbringing” was not a factor that would foster a negative or “wrong” attitude by the girl towards men in general. A. was unlikely to develop serious problems from the point of view of social or professional adaptation. She had sufficient experience of communication with the opposite gender through contacts with her peers, teachers, sports coaches, and so on.
f)  Blood relations do not guarantee mutual love, respect or deep attachment. Emotional relationships are formed in the course of cohabitation, communication, upbringing and communal activity. The inability or unwillingness of the parents to establish a civilised relationship might have affected the negative attitude of A. towards the applicant. The prolonged conflict between the applicant and Ms B., with whom A. identifies, resulted in the child's lack of belief in the possibility of a positive development of her relationship with her father.
g)  Ignoring the girl's emotional and rational rejection of her father and forcing her to meet with him might cause irretrievable adverse effects on the latter's health and psychological well-being. It might also adversely affect A.'s moral development, since in such a situation neither the family nor the State would provide her with psychological support and safety. 23.  On 24 June 2003 the Izmaylovskiy District Court delivered its judgment. The court had studied several expert reports. In particular, in August and September 2002 A. had been referred to a psychologist at the Izmaylovo centre for children. In the report, the psychologist stated that in August 2002 A. had been provided with psychological aid after meetings with her father since, after the resumption of contacts with her father, the girl was highly agitated, irritable and suffered from nightmares. The same psychologist had consulted the applicant and stated that he was showing no parental interest in or affection for his daughter. His perception of the child was “inadequate” and he displayed “a pathological tendency towards litigation”. 24.  The court also studied the report of the expert examination conducted pursuant to its order of 17 February 2003 and examined expert K. during the hearing. She confirmed the conclusions she had stated in the report and emphasised that forcing A. to meet with the applicant, especially without the presence of Ms B., might irreversibly affect her physical and psychological well-being and possibly lead to neurosis and depression. Furthermore, expert K. asserted a strong opinion that the applicant was interested in having contact with A. only to boost his self-esteem and not to establish a relationship with the child. The absence of such a relationship was acknowledged by the applicant himself in his letters to Ms B. and the bailiff, where he stated that his daughter did not wish to see him, hated him, wanted to change her surname and refused to accept his gifts. 25.  The District Court further examined the opinion of the local custody and guardianship service which stated that meetings between the applicant and A. should be discontinued, having regard to the interests and wishes of the latter, who strongly resisted communication with her father. 26.  The court questioned the applicant, who reiterated his claim. It also questioned Ms B., who stated that during the meetings the applicant had provoked a negative reaction on the part of A., for example, by forcibly removing her glasses or earphones, forcing her to accept a book as a present and then taking pictures so as to document her refusal. He failed to establish a relationship with the girl, did not take into account her opinion, applied coercion and brought her to tears. After the meetings with the applicant A. developed nervousness, problems sleeping and refused to leave the house. This behaviour was noted in the psychologists' reports. 27.  The District Court further examined several other witnesses. A.'s school sports coach and her aunt stated that the girl was very sociable, but reacted negatively to her father, wanted to have her mother's surname, had not allowed him to take a picture of her and had left the classroom when the applicant had come to visit her at school. The applicant's father and brother believed that Ms B. had turned her daughter against her former husband. Ms B.'s step-father said that the applicant and his child had had a wonderful relationship until the parents' separation. 28.  The District Court also questioned A. in the presence of a teacher. A. explained that she did not like her father, did not want to see or talk to him and wanted to have her mother's surname.
The District Court held as follows:
“In accordance with Article 66 § 4 [of the Family Code] and section 8 of ruling no. 10 of 28 May 1998 of the Plenum of the Supreme Court of the Russian Federation, in exceptional cases a court may refuse a parent's claim to determine the order of [his or her] participation in the child's upbringing when communication between the child and ... the parent may adversely affect the child, his physical and psychological well‑being.
The court grants the claim to discontinue the father's contact with his daughter and dismisses [his] claim for additional visiting hours, having regard exclusively to the interests of the minor, in particular: the contact ... affects the child's physical and psychological well-being, which is demonstrated by the lack of mutual understanding and communication between the father and the daughter during the meetings ordered by the court's previous decision; having the father's surname is a traumatising situation for the child; the meetings have a very formal nature; the child's conduct at the appearance of her father, when in her mother's presence, is characterised by strong rejection ([she] hid under the desk; ran away; tore up [her] letter of commendation bearing the surname “Rytchenko”; after seeing her father, she refused to go to a picnic with her classmates), which is not conducive to creating psychological comfort and a feeling of safety for the child; the very litigation is psychologically traumatising since it was initiated by [the applicant] but is centred around the seven year-old child, who knows about it because the court decision of 8 February 2002 is being enforced with her participation. Furthermore, the court takes into account that the child was being seen repeatedly by psychologists ...
The lack of contact between the father and the daughter and the psychologically traumatising environment for the child is corroborated by the parties' explanations, documentation from the case, statements by witnesses and the opinion of the local custody and guardianship office.” 29.  At the hearing of 24 June 2003 the judge removed one of the applicant's representatives from the courtroom. The applicant also asked his second representative to leave the courtroom and requested that the judge provide him with legal representation. After the refusal to grant his request, the applicant unsuccessfully challenged the judge. 30.  On 22 September 2003 the Moscow City Court upheld the first-instance judgment. It also mentioned that the applicant's representatives had been removed for contempt of court.