ITEMID: 001-104972
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF R. AND H. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The first applicant, R, was born in 1962. The second applicant, H, was born in 1971. They live in Northern Ireland. The applicants are the biological parents of a child, N, who was born in April 2002. The first applicant, R, is the child’s father; the second applicant, H, is her mother. The second applicant has three other children, HH, P and T, who were born in 1989, 1991 and 1996 respectively. Full care orders were made in respect of HH, P and T in 2001. Another child, O, was born to the applicants in November 2006 and has remained in their care.
6. The second applicant has a long history of alcohol problems and has experienced various periods of stability and sobriety followed by periods of abuse of alcohol, including when she was pregnant with N.
7. When N was born, she was removed at birth and the second applicant was admitted to an addictions centre where she remained for approximately one month. Both applicants attended a parenting centre with N in June 2002 for assessment purposes: they take the view that the assessment reports were positive.
8. In August 2002, the applicants were allowed to take N home. T was returned to the applicants’ care in early March 2003. Further reports were also positive until late March 2003 when HH and P came home for contact visits and then refused to leave. The second applicant started drinking again. She asked for help and N was removed by social workers from the Down Lisburn Health and Social Services Trust (“the Trust”) on a voluntary basis and placed with foster carers.
9. HH, T and P were also removed to Trust accommodation. HH was eventually returned to the second applicant in November 2003, by which time she was fourteen years of age, and P insisted on leaving foster care and returning to the second applicant in February 2005, when he was thirteen years of age. T was returned to the applicants in December 2007 (see paragraph 40 below).
10. On or around 29 May 2003, the Trust applied for a care order in respect of N. The care plan, which was submitted by the Trust with its application for the care order, envisaged that N would remain in the care of short-term foster parents pending an application to the High Court to free her for adoption. On 7 July 2003, the Trust was granted an interim care order in respect of N.
11. On 17 July 2003, at a “Looking after children” (LAC) review attended by the applicants, the Trust decided that N’s case should be referred to the Trust’s Permanency Panel. On 20 August 2003, the Trust’s Permanency Panel decided to refer the case to the Trust’s Adoption Panel. The Permanency Panel did not make any recommendations on adoption at this stage but recommended that the care plan should be made more explicit and the second applicant, who had stopped drinking at this time, be monitored to see if she remained sober. It referred the matter of the care plan back to the LAC review. On 4 September 2003, the LAC referred N’s case to the Adoption Panel. However, it also decided that a “kinship assessment” (a social work assessment of whether a specific family member can care for a child) be completed in respect of N’s maternal grandmother, MRH. That assessment was completed in November 2003 and concluded that it would not be appropriate for N to be placed with MRH. This was because, in the late 1980s, MRH’s husband, from whom she was estranged but with whom she continued to live, had been the subject of allegations that he had inappropriately touched one of their daughters. He had also refused to participate in the kinship assessment.
12. On 23 September 2003, MRH applied for a residence order in respect of N and her sister, T.
13. On 11 December 2003, the Trust’s Adoption Panel recommended the adoption of N.
14. The Trust’s application for a care order and MRH’s application for a residence order were heard together by a judge sitting at the Belfast Family Care Centre (“the Family Judge”). In those proceedings a number of reports were filed including one prepared by a consultant forensic psychiatrist on the second applicant, which had been commissioned by the Trust. The report, dated 22 April 2004, identified a series of personality based difficulties, which caused the second applicant’s alcohol abuse but which were also made worse by it. The psychiatrist was not asked to recommend any particular course of treatment in the report.
15. In his judgment of 30 July 2004, the Family Judge first considered whether it was possible to make no order in favour of either the maternal grandmother or the Trust, the effect of which would be to return N to her parents. In concluding that this was not an option, he found that while the second applicant, when sober, provided adequate and appropriate parenting, he did not believe that on the balance of probabilities she would remain abstinent. The first applicant would not provide adequate protection for N in such an event and there was the further prospect of domestic violence by the first applicant towards the second applicant.
16. The Family Judge then dismissed the application by MRH for residence orders in respect of N and her sister. He found that there was insufficient evidence to make a finding that MRH’s husband had committed sexual abuse in the 1980s but it was of great concern that he had refused to be assessed. MRH, from whom the Family Judge had heard evidence, had not grasped the basic implications of a residence order, particularly that it would entrust N to her care for over fourteen years.
17. The Family Judge made a full care order in respect of N in favour of the Trust. On the basis of expert evidence recommending three to four annual face-to-face meetings between N and her parents in the event of her adoption, the judge approved the Trust’s plan to reduce contact gradually, from twice a week with the applicants, once a week with the whole family and once a month with her siblings only to one meeting a month. The applicants initially sought to appeal against the Family Judge’s order but withdrew their appeal on 16 September 2004 when public funding was withdrawn by the Northern Ireland Legal Services Commission.
18. On 14 September 2004, the Trust applied to the High Court for an order freeing N for adoption (a “freeing order”) and sought to have the need for the applicants’ agreement dispensed with on the ground that they were withholding their agreement unreasonably. The application was heard over seven days between 25 January 2005 and 14 April 2005. It appears from the domestic decisions as submitted by the applicants, in particular the dissenting opinion of Baroness Hale (see paragraphs 30–33 below), that the Trust made no attempts to find prospective adopters in that time since it was not its policy to do so until a freeing order had been made. The Government in their submissions to this Court considered that these findings overlooked the initial steps which had been taken to find suitable carers for N, such as contacting a voluntary adoption agency (see paragraph 60 below).
19. The High Court heard expert evidence from a professor of social work, Professor John Triseliotis, on two separate days. On the first day, Professor Triseliotis stated that he disagreed with the Trust’s plans for no contact between the applicants and N after the adoption. There could be no question of post-adoption contact if the applicants did not support the adoption but their opposition to adoption did not mean that they would undermine the placement if an order was made. He further stated that the applicants had to be judged after the court had made its decision.
20. Before Professor Triseliotis could finish his evidence, a senior social worker gave evidence for the Trust stating that the Trust had initially been opposed to direct post-adoption contact because of the parents’ hostility but, having heard Professor Triseliotis’ evidence, they were prepared to look for prospective adopters who would meet N’s need for continued contact with the applicants. However, they could not guarantee finding such adopters or that contact would be workable.
21. When giving evidence for the second time, Professor Triseliotis accepted that if every effort was made over a period of six months to find suitable adopters who would agree to direct contact, but none could be found, he would “go for adoption but with some regret that an adoptive parent would be so exclusive”.
22. In its judgment of 31 May 2005, the High Court concluded that adoption was in N’s best interests and made a freeing order. The trial judge (Mr Justice Gillen) accepted that there was no realistic possibility of the second applicant remaining abstinent from alcohol during N’s childhood. He further found that the second applicant had clearly attempted to minimise domestic violence in the household and regarded it as “another instance where she fails to prioritise the needs of her children over those of herself or her partner”. The trial judge also rejected the applicants’ submission that the Trust should have diagnosed the second applicant’s personality difficulties sooner. He stated:
“[The second applicant] cannot place the burden of her problems on to the Trust. She has her own responsibilities and if she wished to address this problem of drinking she cannot leave it entirely up to the Trust. Failure to ascertain the root of her problem lies partly at least with her own actions. The welfare of this child cannot be sacrificed to the need to address her problems of alcohol. Moreover I am satisfied that the Trust had taken all reasonable steps to afford her professional and expert help and it cannot be blamed if only now yet another alternative remedy is postulated. I believe it is too long a timescale to address all these problems at this stage and I am not prepared to endanger the future of N simply to meet the lateness of the prognosis of H’s problems.”
After considering the relevant case-law of this Court and the domestic courts on adoption and Article 8 of the Convention, the trial judge stated that he was satisfied that adoption was in the best interests of N. He then considered whether the Trust had satisfied him on the balance of probabilities that the applicants were unreasonably withholding their consent. He rejected the applicants’ argument that a reasonable parent would be justified in withholding consent until they could be assured that any prospective adoptive parents would agree to post-adoption contact and also rejected their argument that the Trust should have taken steps to identify such a couple before making the application for a freeing order. He stated:
“I am satisfied that the need for adoption is so pressing that whilst it would be preferable that some limited measure of post adoption contact should be established if possible nonetheless adoption must proceed even if this cannot be achieved. Otherwise both parents could operate a veto on adoption by behaving so badly that no one would agree to post adoption contact....I share the view of Professor Triseliotis that if all reasonable efforts to find a couple who will embrace post adoption contact fail then the circumstances of the historical events of the past still make it imperative that the adoption should proceed. Any reasonable parent in my view would readily understand that. This is not inconsistent with Article 8 of the ECHR but rather a careful consideration of the rights of this child as well as the rights of the adults.”
23. Having reached the conclusion that the applicants’ consent could be dispensed with on the ground that it was unreasonably withheld, the trial judge added:
“Whilst it is inappropriate for me to look at the question of contact post adoption until this child comes before the court for adoption, I feel it is appropriate that I should say that I accept entirely the view expressed by Professor Triseliotis that it is important that if at all possible this child should have the benefit of continued contact with both parents at the frequency suggested by Professor Triseliotis. . . . If these birth parents can accept the new position and help this child to settle down without undermining the placement, I believe this can be of great assistance to this child now and in the future. . . . I also sincerely hope that the prospective adoptive parents when they are chosen will be carefully counselled as to the views of Professor Triseliotis concerning the benefits of post adoption contact but obviously if after all reasonable efforts have been made by the Trust for a period of six months or so, and no such couple can be found, then I am of the opinion that the benefits of adoption will outweigh the benefits of post adoption contact....I am satisfied that a freeing order in this case is a proportionate response to the legitimate aim of ensuring the welfare of this child. I have sought to balance the Article 8 rights of both parents, reminded myself that this draconian remedy should only be resorted to where no alternative avenue is open and where the interest of the child clearly requires it.”
24. The applicants appealed to the Court of Appeal in Northern Ireland. On 22 November 2005, the Court of Appeal refused the appeal by a majority. All three judges expressed disagreement with certain of the trial judge’s findings, in particular his view that there was no hope of the mother remaining abstinent. However, the majority did not consider that he was plainly wrong in finding that freeing N for adoption was in her interest.
25. Lord Justice Nicholson considered first the factual basis for the trial judge’s order. He noted that a number of allegations of domestic violence by the first applicant had been withdrawn by the second applicant and HH but found it served no purpose to re-open the Family Judge’s findings (see paragraphs 14–17 above). He found:
“Time is not on the side of N and on the best scenario of H’s progress, N would be 5½ years old before it would be safe to return her to her parents. By that time N would almost certainly be too old to be adopted successfully and although I consider that the probability is that H will not relapse, I am not prepared to take the risk that she will do so under the stresses and strains of coping with [HH] and P as she did in 1996. I recognise that she is almost 10 years older and much more mature but the risk of serious harm to N is there and the damage caused to [HH] and P is evident. The damage to N if she was returned would be, to quote Professor Tresiliotis: ‘catastrophic’.
But as I have indicated I do not take the pessimistic view of the judge about H and R. The birth parents are capable of supporting the bonding of adoptive parents with N. If this proves wrong, H and R would have only themselves to blame. If a Freeing Order is made, they will need counselling not merely from someone who helps H to understand why she resorted to drink ... Moreover, if there is a relapse, this should not operate as a bar to contact with N, provided that it is supportive. I realise that H and R have been antagonistic to adoption. That is not surprising, especially having regard to their own achievements since 2003. But the Trust must realise that if a Freeing Order is made, their hostility may change, not least as they will otherwise lose all contact with N.
Furthermore, if a Freeing Order is made the Trust must be shown to the judge dealing with the adoption as having made every effort to find prospective adoptive parents who will be prepared to permit supportive contact by the birth parents in the interests of N, as Professor Tresiliotis has urged.
In order to ensure that the Trust fulfils its obligations it has been agreed with Gillen J, who is the Family Judge, that if a Freeing Order is made, Campbell LJ should be the judge who deals with the adoption. Hopefully, it will put pressure on the Trust to meet their obligations. The judge himself indicated his concern that direct contact should be available to H and R if they prove supportive to adopting parents.”
Lord Justice Nicholson further found that the Trust should have been required to provide evidence as to the availability of prospective adopting parents who would permit direct contact with supportive birth parents. Nevertheless, he upheld the view of the trial judge that reasonable parents would accept that if prospective adopters could not be found who would permit contact, N should still be adopted. On Article 8 of the Convention, he concluded:
“ I am satisfied that the judge gave careful consideration to the Article 8 rights of H and R and N’s siblings. I bear in mind the steps taken by the Trust to rehabilitate H and R after the birth of N and the fact that she was placed with them in August 2002 and only taken away in June 2003 when H had a relapse. The decision to make a freeing order is the most drastic step which can be taken in breaking the bond of parent and child. I have read all the relevant authorities which were drawn to our attention. I have disagreed with the judge’s assessment of a number of important matters. But I am satisfied that a freeing order is a proportionate response to the legitimate aim of ensuring the welfare of N, bearing in mind her rights and the rights of H and R and N’s siblings under Article 8.
On a freeing order a court cannot attach conditions. I have made clear my views on the issue of contact post-adoption. It will be a matter for the judge at the adoption hearing to determine whether suitable adoptive parents have been found. Consensual arrangements for contact between adopting and birth parents are much to be preferred.”
26. Lord Justice Campbell, concurring, was not in full agreement with the trial judge either in his assessment of the expert evidence as giving no realistic possibility of the second applicant continuing to remain abstinent during N’s childhood or in his view that the prospects of success of the course of treatment that was proposed were not good. However, he was satisfied that the pressing needs of N could not wait to be met until H had successfully completed the course of treatment. He also found that when the question of contact was a finely balanced judgment, the issue was whether the advantages of adoption to the welfare of N were sufficiently strong as to justify overriding the views of the applicants. The trial judge had been satisfied that the need for adoption was so pressing that whilst it would be preferable to have some limited measure of post-adoption contact, nonetheless adoption had to proceed even if this could not be achieved. The reasonable parent, faced with this decision and with the welfare of N in mind, would be driven to this conclusion.
27. Lord Justice Shiel, dissenting, agreed with the other members of this court that it was in the best interests of N that she should be freed for adoption. However, he considered that the trial judge was incorrect in holding that the applicants were withholding their consent unreasonably. The evidence of Professor Triseliotis meant it was a finely balanced judgment as to whether to free N for adoption and there had been a “very marked improvement” in the personal circumstances of the applicants prior to the High Court judgment. The second applicant had managed to stay off alcohol since July 2003 which was a very considerable achievement for one who had had such a severe alcohol problem. N had strong attachments to both of her parents, particularly her mother, both of whom faithfully attended contact meetings with N.
28. The applicants appealed to the House of Lords. On 12 July 2006, the House of Lords (by a majority of four to one, Baroness Hale of Richmond dissenting) rejected the applicants’ appeal. Lord Carswell (with whom Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe agreed) stated that he agreed with the trial judge that the Trust’s response had been proportionate in the pursuit of the legitimate aim of protecting the welfare and interests of the child. In response to the applicants’ argument that the trial judge could not correctly hold that the withholding of agreement was unreasonable when it was not known whether post-adoption contact could be arranged, Lord Carswell stated:
“The availability of post-adoption contact is, of course, a relevant factor to be taken into account in deciding whether to dispense with the parents’ agreement and make a freeing order, and the necessity to ascertain what and how much contact can be arranged will vary from case to case. But evidence on that topic cannot be regarded as a condition which is in law a sine qua non, requiring to be satisfied before the judge can proceed.... [Counsel for H., the second applicant] put the argument, as I understand his submissions, in a modified form, that the availability of post-adoption contact is a factor which ranks so high in importance that unless there is sufficient evidence about it before him the judge cannot be said to have had regard to all the necessary factors in reaching a decision on dispensing with agreement and freeing for adoption. This again appears to me to be elevating a matter of evidence into a matter of law. It is for the judge to have regard to the availability of contact in coming to his decision, but so long as he has evidence on which he can properly make his decision and he has not misdirected himself or been in error in respect of other factors to which he should have regard, his decision will be sustainable unless he is ‘plainly wrong’.”
29. Lord Carswell then reviewed the relevant domestic case-law on reasonableness, including the decision in Re C that a reasonable parent pays regard to the welfare of his or her child (see paragraph 46 below). He concluded that the trial judge had appropriately applied this case-law, and observed:
“[The trial judge] took quite a strong line in coming to and expressing his conclusions, but in my view these were properly inside the bounds within which his determination must be allowed to prevail. There was considerable evidence before him of the risks that H might relapse and of the unhappy consequences which that would have for N if she were living with her. It was a matter of judgment whether these circumstances were such that the hypothetical reasonable parents would give their agreement to adoption. The majority of the Court of Appeal were of the opinion that it was a finely balanced judgment, but that the judge’s decision should nevertheless stand, and in that I think that they were right.”
30. Baroness Hale of Richmond found that any reasonable parent would be entitled to place great weight on the views of Professor Triseliotis and were entitled to see what efforts were made to find the right sort of placement for N before giving their consent. In taking the view that the applicants could frustrate an adoption by behaving so badly that no-one would agree to post-adoption contact, the trial judge had placed undue weight on an irrelevant consideration when deciding that the parents were unreasonably withholding their consent. The evidence was very clear that contact would only be in the best interests of the child if the applicants behaved well and did not use it to undermine the placement. The applicants had not sought to use their contact to undermine N’s placement. Nor, despite the view which he had formed of the desirability of post adoption contact, did the trial judge consider whether the court could, at that stage, promote this, for example by preserving the parents’ position after a freeing order.
31. Baroness Hale also observed:
“It is not enough for the court to decide in a vacuum whether ‘adoption’ is in the best interests of the child. It must decide what sort of adoption will best serve her interests. If the court takes the view that some form of open adoption will be best, then it will have to take that into account in deciding whether it will accord with its most important consideration, the welfare of the child, to make an order freeing the child for adoption before there is any evidence available of the efforts made to secure the right sort of adoptive placement and to prepare both families for it. The court may, of course, take the view that the need to free the child for adoption is so pressing that this should be done even if it is not yet known whether an open adoption will be possible. But the need to free the child for adoption is different from the need for the child to be adopted. It may be premature to free a child for adoption even though it would not be premature to make an adoption order.”
32. She further considered that adoption practice in Northern Ireland laboured under three misconceptions. The first was that that the search for prospective adopters should not begin until the child has been freed. The second was that it was not possible to run proceedings, whether for adoption or for freeing, in such a way that the parents and prospective adopters were able to hear and to challenge one another’s evidence. The third was that it was not possible to consider the issue of post adoption contact until the adoption application itself. A judge hearing a freeing application could not make an order about contact after the adoption but that did not mean that the issue of post adoption contact was not relevant to whether or not the child should be freed for adoption.
33. In considering Article 8 of the Convention she stated:
“There is, so far as the parties to this case are aware, no European jurisprudence questioning the principle of freeing for adoption, or indeed compulsory adoption generally. The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.) It is, of course, the most draconian interference with family life possible. That is not to say that it can never be justified in the interests of the child. The European Court has said that where the interests of the child and the interests of the adults conflict, the interests of the child must prevail: eg Yousef v The Netherlands [2003] 1 FLR 210, para 73. But it can be expected that the European Court would scrutinise the relevance and sufficiency of the reasons given for such a drastic interference with the same intensity with which it has scrutinised severance decisions in other care cases: see, in particular, P, C and S v United Kingdom [2002] 2 FLR 631, para. 118. The margin of appreciation accorded to the national authorities is correspondingly reduced. In a freeing application, the question must be whether it is necessary and proportionate to sever the links with the family of birth if a new family has not yet been identified.”
34. The Trust matched N with suitable prospective adopters in March 2006. By letter dated 13 October 2006, the Trust informed the applicants that N’s prospective adoptive parents had lodged an application for an adoption order in the High Court. On 26 October 2006, the applicants wrote to the High Court opposing the granting of the order.
35. On 15 January 2007, by direction of the High Court, the applicants were joined as respondents in proceedings but their participation was confined to the issues of post-adoption contact and whether the proceedings should be stayed. On the same date, the High Court also directed that the proceedings should not be stayed pending the outcome of the present application before this Court. In the written reasons for its judgment, given on 25 February 2008, the High Court considered that there were advantages in both biological parents and prospective adopters being involved in further proceedings as to whether there should be post-adoption contact, which the courts in Northern Ireland were to consider “with fresh eyes” after Baroness Hale’s dissenting judgment.
36. On 30 March 2007, an agreement was reached between the parties concerning post-adoption contact. The post-adoption contact arrangement provided for N to see her birth family three times per year, accompanied throughout by her adoptive parents.
37. The matter was then adjourned for the hearing of the adoption application. Since the applicants had only been joined to the proceedings for the purposes of their application for a stay and to be heard in connection with their application for post-adoption contact, they were not permitted to participate further in the proceedings. An adoption order was made on 3 April 2007.
38. The second applicant maintains that, with the exception of one relapse in August 2010, she has remained sober since 2003. She has received counselling and regularly attends AA meetings. The Government maintained that she had suffered at least two relapses in summer 2010. Counselling was also provided after T, H’s fourteen year daughter, was taken into foster care on 9 October 2010 (see paragraph 40 below) and when the domestic authorities were so concerned about H’s mental health that she was offered either inpatient treatment or intensive support from their mental health team.
39. The applicants and O have contact with N three times a year. T, P and HH are permitted to see N once a year, though the Government have indicated that, when N intimated that she was upset as to the lack of frequency of contact with T, arrangements were reviewed in order to increase contact.
40. T was returned to the applicant’s care in December 2007, after five years in foster care. The Government maintain that she spoke to social workers about her need to leave the applicants in summer 2010 and, after she attempted suicide, she was removed to foster care on 9 October 2010. After a further suicide attempt, T has been transferred to inpatient psychiatric care. The applicants believe that T’s mental health difficulties are attributable to N’s adoption. The Government assert that the view of the professionals who are responsible for T’s care is that the impact of N’s adoption on T has been partly due to the second applicant’s continuous promotion of her own views on N’s adoption to T and other difficulties in T’s upbringing.
41. O remains in the care of the applicants and there have never been any proceedings in respect of him. For approximately two years, the applicants also provided temporary foster care for the second applicant’s two nieces and her nephew. This arrangement was approved by a different Trust, the Western Health and Social Care Trust. The applicants maintain that this Trust was very complimentary of the care they provided. The Government maintain that the Trust responsible for the applicants’ own children did not approve of this temporary foster care and that care in fact ended due to problems in the family.
42. HH has had two children. The second child, L, was made the subject of an interim joint residence order by the Family Proceedings Court with care to be shared between the applicants and L’s paternal grandmother. The applicants maintain that, in making that order, the court would have had regard to L’s welfare and would have had to assess whether L was at risk by placement with the applicants. The Government maintain that L’s care was assumed by the paternal grandparents in August 2010 and that the applicants no longer wish to pursue a residence order application for L.
43. Article 3(1)(a) of the Children (Northern Ireland) Order 1995 (“the 1995 Order”), which provides that, where a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration. Article 3(2) requires the court to have regard to the general principle that any delay is likely to prejudice the welfare of the child.
The compatibility of these provisions with Article 8 of the Convention was considered in AR v. Homefirst Community Trust [2005] NICA 8 where the Court of Appeal in Northern Ireland, found that, in a case where a newborn baby had been removed from his mother’s care within a few days of his birth, the need to have the child’s situation settled should not be allowed to predominate to the extent that the mother’s rights under Article 8 of the Convention were disregarded. The child’s welfare was paramount but this did not mean that a court should exclude the parent’s Article 8 rights from its consideration. This was applied in Homefirst Community Health and Social Services Trust v. SN [2005] NICA 14 to a “freeing order” (see section 2 below). In that case, the mother’s child was taken from her care four months after his birth. She underwent therapy for personality and mental health difficulties. The Court of Appeal found that, had the Trust in that case been fully cognisant of the mother’s rights under Article 8, it should have given her a further opportunity to prove herself through therapy. Despite the progress she had made, at the time of the court’s judgment her son had been settled with prospective adopters for nearly three years and thus it was in the child’s best interest that he should be freed for adoption. In those circumstances, SN was withholding her consent unreasonably.
44. Article 18(1)(b) of the 1995 Order provides that it shall be the duty of every authority, so far as it is consistent with its duty to safeguard and promote the welfare of children who are in need, to promote the upbringing of such children by their families. The equivalent provision for England and Wales, section 17 of the Children Act 1989, has been interpreted in England and Wales as creating a strong supposition that it is in the interests of the child to be brought up by his natural parents (Re W (A Minor) (Residence Order) [1993] 2 FLR 625). When a child is a baby the assumption is that it should remain with its mother (Re W (A Minor) (Residence Order) [1992] 2 FLR 332.
45. Article 9 of the Adoption (Northern Ireland) Order 1987 (“the 1987 Order”) provides:
“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall—
(a) have regard to all the circumstances, full consideration being given to—
(i) the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and
(ii) the need to safeguard and promote the welfare of the child throughout his childhood; and
(iii) the importance of providing the child with a stable and harmonious home; and
(b) so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.
46. Article 18 of the 1987 Order provides that where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2) of the Order, the court shall make an order declaring the child free for adoption. The grounds in Article 16(2) include when the parent or guardian is withholding his agreement unreasonably.
In determining whether the parent is withholding his agreement unreasonably, the court must apply an objective test. In Re W (an infant) [1971] A.C. 682, it was held by the House of Lords that although welfare of the child was the test per se, the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor.
In Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] FLR 268 it was held by the Court of Appeal in England and Wales that reasonableness could be determined by the judge asking himself “whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents.”
In Re P (Adoption: Freeing Order) [1994] 2 FLR 1000 it was held that, when deciding whether to make a freeing order when there is no guarantee of post-adoption contact, it was appropriate for a judge to decide: (i) to make no freeing order and decide whether to dispense with consent at the later stage of an application for an adoption order; (ii) to make an order because adoption was more important than contact; or (iii) to decide that contact was so important that, if post-adoption contact was not possible, long-term foster care was appropriate and thus that no freeing order should be made.
Guidance by the Department of Health and Social Services for England and Wales that prospective adopters be identified before the date of the final care hearing was endorsed by the High Court in Northern Ireland in Re Z and T (freeing order application) [2005] NIFam 6.
47. Article 18(2) of the 1987 Order provides that no application shall be made unless the child is in the care of an adoption agency and the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption. An adoption agency may be a Health and Social Services Trust. By Article 18(3) read with Article 12(3) of the 1987 Order, such a “freeing order” acts to extinguish the parental responsibility of the parents. Rule 4A.4(2) of the Family Proceedings Rules (Northern Ireland) 1996 (“the 1996 Rules”) requires that the respondents to an application for a freeing order shall include, inter alia, each parent or guardian of the child.
48. Article 12 of the 1987 Order provides for an adoption order to be made by an authorised court on the application of the adopters. When such an application is made, Rule 4A.15(1) of the 1996 Rules specifies that the respondents shall include each parent or guardian of the child, unless the child is free for adoption. Rule 4A.16 provides that where the child is not free for adoption and the applicant intends to request the court to dispense with the agreement of a parent or guardian of the child, such a request shall be included in the application. The grounds for dispensing with agreement are those contained in Article 16(2) of the 1987 Order. By Rules 4A20 and 23(1), of the 1996 Rules, as respondents the parents are served with notice of any hearing and can attend and be heard on whether the adoption order should be made.
By Article 12(3) of the 1987 Order, the making of an adoption order operates to extinguish the parental responsibility which any person has for the child immediately before the making of the order.
Article 13(1) and (2) require a child to live with his or her prospective adopters before an adoption order is made.
49. The Adoption and Children Act 2002 replaced freeing orders in England and Wales with placement orders. A placement order can only be made with the consent of the parent or guardian, unless the court considers that consent should be dispensed with (section 21). In contrast to Article 18 of the 1987 Order, a placement order can be made without the need to satisfy the court that it is likely the child will be placed for adoption. There is no requirement that prospective adopters be identified before a placement order is made (see Re T (children: placement order) [2008] EWCA Civ 248; Re P (children) (adoption: parental consent) [2008] EWCA Civ 535).
Placement orders do not terminate parental responsibility until an adoption order is made (section 46(2)) but, if a placement order is made, the biological parents may not oppose the making of an adoption order without the leave of the court. Leave is only given if there has been a change in circumstances since the placement order was made (section 47(7)).
50. Similar provisions apply in Scotland under the Adoption and Children (Scotland) Act 2007.
51. Article 5 of the European Convention on the Adoption of Children, Strasbourg, 2008, where relevant, provides as follows:
“1 Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:
a the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place;
b the consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years;
c the consent of the spouse or registered partner of the adopter.
2 The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.
3 The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph 1 save on exceptional grounds determined by law. However, the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with.
4 If the father or mother is not a holder of parental responsibility in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent...”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-57930
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF KAMPANIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. Mr Kampanis is a physicist by training and has dual Greek and Canadian nationality. He was formerly the chairman and managing director of "Greek Armaments Industry" (Elliniki Viomikhania Oplon, "EVO"), a publicly owned company.
7. On 21 November 1988, following a complaint lodged on 8 November 1988 by the Deputy Minister of Defence, the prosecutor at the Athens Criminal Court (Isangeleas Protodikon) sought the opening of an investigation in respect of the applicant in connection with alleged offences of misappropriation and repeated fraud to the detriment of EVO, making false statements and incitement to misappropriation and fraud. In a further application of 16 December 1988 the prosecutor sought an extension of the investigation to cover alleged offences of misappropriation by a civil servant in the performance of his duties.
8. On 19 December 1988 the investigating judge at the Athens Criminal Court, after questioning the applicant, charged him on several counts of aggravated misappropriation by a civil servant in the performance of his duties, and making false statements. On 23 December 1988, by order no. 24/1988, he remanded Mr Kampanis in custody with effect from 21 December, the date of his arrest, on the grounds that there was sufficient prima-facie evidence of his guilt and that it was necessary to prevent him from absconding and to make sure that he did not commit further offences. On 3 July 1989 the Indictment Division of the Athens Criminal Court (symvoulio plimmeliodikon) ordered that he was to remain in detention on remand.
9. On 18 July 1989 the applicant applied for release on bail. One month later the investigating judge rejected this application on account of the seriousness of the charges against the applicant, the severity of the penalties which he risked and the danger that evidence not yet brought to the prosecuting authorities' attention might be concealed. He noted in that connection that the accused had held an influential post at the head of a State undertaking and had contacts with civil servants who, at his instigation, might suppress documentary evidence and provide false certificates or make false statements. Moreover, Mr Kampanis had kept his Canadian nationality and could thus go to Canada at any time. Lastly, his academic qualifications, his knowledge of languages and his professional experience would have made it easy for him to settle in a foreign country. There was accordingly a risk that the applicant might abscond.
10. On 31 July 1989 the investigating judge at the Athens Criminal Court charged the applicant, in connection with the same investigation, with misappropriation and fraud relating to expenditure he had incurred and a number of contracts he had concluded on behalf of EVO with a Canadian company. The judge in question then made a second order (no. 6/1989) remanding Mr Kampanis in custody.
11. On 3 October 1989, still in connection with the same investigation, the same judge charged the applicant on a number of counts of aggravated misappropriation to the detriment of EVO, linked in particular to the payment of commissions during negotiations concerning arms sale contracts.
12. On 9 January 1990 a full court (olomelia efetiou) of the Athens Court of Appeal decided, under Article 29 of the Code of Criminal Procedure, to assign the investigation of the three cases known as the "EVO cases" to a judge at the Court of Appeal in order to complete the pre-trial procedure "as rapidly as possible".
13. On 24 May 1990 the Court of Appeal's special investigating judge charged the applicant and a large number of his former colleagues on a number of counts of misappropriation by a civil servant in the performance of his duty. He also made a further order remanding the applicant in custody (no. 1/1990), which was executed on 26 May.
14. On 5 June 1990 Mr Kampanis appealed against this order to the Indictment Division of the Athens Court of Appeal (symvoulio efeton). He alleged that his continued detention infringed Article 6 para. 4 of the Constitution (see paragraph 31 below) and that the order failed to give sufficient reasons.
In a decision (voulevma) of 28 June 1990 the Indictment Division dismissed the appeal as out of time, since it had been lodged after expiry of the five-day period laid down in Article 285 para. 1 of the Code of Criminal Procedure.
15. On 11 June 1990 the investigating judge informed the applicant, in accordance with Article 308 para. 6 of the Code of Criminal Procedure, that he had closed the investigation. On 5 September 1990 the prosecutor sent the file to the Indictment Division so that it could decide whether to commit the applicant for trial (see paragraph 23 below).
16. On 13 June 1990 Mr Kampanis unsuccessfully applied for release on bail. The Indictment Division - before which he had in addition requested leave to appear in order to be able to reply to the prosecutor's submissions - dismissed his application on 6 July 1990 on the ground that the investigating judge's decision was sufficiently reasoned and well-founded in law.
17. In the meantime, on 27 June 1990, the principal public prosecutor at the Court of Appeal had asked the Indictment Division to prolong Mr Kampanis's detention for a further six-month period.
On 5 July 1990 the applicant sought the Indictment Division's leave to appear before it in order to present argument in support of his application for release. He emphasised that the legislation in force made no provision for the appearance of the parties and in particular of the accused or his counsel during the proceedings before investigating judges or indictment divisions; this was a lacuna and a flaw in the legislation, stemming from the inquisitorial nature of the system and from the principle of confidentiality, which often ran counter not only to the accused's defence rights but also to the interests of justice. While acknowledging that Article 287 para. 2 of the Code of Criminal Procedure - applicable to that stage of the proceedings - did not contain any provision similar to that in Article 287 para. 1 (see paragraphs 32 and 33 below), he relied on the latter provision by analogy and on the fact that his detention had been prolonged beyond the twelve-month limit laid down in the Constitution (see paragraph 31 below) to support his contention that he should be allowed to appear before the Indictment Division.
In a decision of 16 July 1990 the Indictment Division allowed the prosecutor's application - after hearing him on 10 July in the absence of the accused - and confirmed the prolongation of the applicant's detention on remand. Neither the prosecutor nor the Indictment Division dealt with the applicant's arguments concerning his application for leave to appear.
18. On 18 and 19 July 1990 Mr Kampanis complained of the length of his detention on remand to the prosecutor at the Piraeus Criminal Court and the principal public prosecutor at the Court of Cassation.
19. On 18 September 1990 he again requested his release. In support of his application he maintained that, if the correct legal classification were given to the offences of which he was accused, the length of detention on remand in respect of the offences referred to in the last two detention orders (see paragraphs 10 and 13 above) would have to be calculated from the date of his imprisonment under the first order, of 21 December 1988 (see paragraph 8 above); the continuation of his detention after 21 June 1990 was therefore unlawful.
In a decision (no. 2648/90) of 13 November 1990 the Indictment Division rejected the application on the ground that the offences cited in the second and third detention orders had each been constituted by a separate criminal act (see paragraphs 10 and 13 above).
20. On 30 January 1991 the applicant submitted a further application for release to the Indictment Division, before which the question of his committal for trial was then pending. He argued that his detention was based on the successive orders of 23 December 1988, 31 July 1989 and 24 May 1990, each of which had fixed a new starting-point for calculating the length of detention, and that as a result he had remained in prison, without being committed for trial, for twenty-five months and ten days, whereas the maximum period authorised under Article 6 para. 4 of the Constitution was twelve months or, in exceptional circumstances, eighteen months. Such a period, whose length, he argued, was due to the slow progress of the investigation, the splitting up of the alleged offences into separate sets of charges and the making of successive detention orders, was in breach of the Greek Constitution and of Article 5 para. 3 (art. 5-3) of the Convention as interpreted by the European Commission and Court of Human Rights. He also complained that the Indictment Division had not yet ruled on his complaint of a violation of the Convention, although he had already raised it several times. Lastly, he requested leave to appear with his lawyer in order to put forward his arguments.
21. On 6 February 1991 the Indictment Division heard the prosecutor, who expanded on the written submissions he had filed the day before.
22. On 13 February 1991 the Indictment Division dismissed Mr Kampanis's applications (decision no. 553/91). It held that Article 5 (art. 5) of the Convention neither specified what was a reasonable length of time for an accused to be held in pre-trial detention nor laid down a procedure for deciding whether to release him. On the other hand, these matters were specifically dealt with in Articles 282 and 287 of the Code of Criminal Procedure and Article 6 para. 4 of the Constitution.
It noted that the accused had initially been detained for eighteen months under order no. 24/1988 of 23 December 1988 and that at the end of this period he had been "released but only nominally", since in the meantime two further orders had been made against him, namely the order of 31 July 1989 (no. 6/1989), extended by virtue of Article 287 para. 2 until 31 January 1991 (and in respect of which the application concerned was now devoid of purpose), and the order of 24 May 1990 (no. 1/1990), which was still valid.
After examining the whole of the proceedings to date and referring in particular to its decision of 13 November 1990 (see paragraph 19 above), it held that Mr Kampanis's contention that some of the separate offences he had been charged with in fact constituted a single offence - and, in the alternative, that the separate offences alleged against him derived from a single criminal act - went to the merits of the charges and the legal classification of the offences in issue. The Indictment Division's task under Article 29 para. 3 of the Code of Criminal Procedure was to determine at first and last instance whether the charges were lawful and whether there was a case to answer. It would therefore give a final decision on the questions raised by the applicant only after weighing all the evidence. It would then decide at the same time whether to prolong the detention or order the applicant's release (Article 315 para. 1 of the Code of Criminal Procedure - see paragraph 38 below). The application for release of 30 January 1991, which had the same purpose and was based on the same evidence as the application of 18 September 1990, was accordingly premature and should be declared inadmissible.
Lastly, the Indictment Division held Mr Kampanis's application for leave to appear in person to be ill-founded. On this point it followed the reasoning of the prosecutor, who had argued in his submissions of 5 February 1991 that such an appearance "[could] be contemplated only where the Indictment Division [was] about to rule on the merits of the case or in those cases where it [was] specifically provided for by law (Athens Court of Appeal, judgment no. 334/1982, Pinika Chronika, vol. 52, p. 685)" (see paragraph 39 below).
23. In the meantime, on 17 September 1990, the Indictment Division, having before it the question whether to commit Mr Kampanis for trial (see paragraph 15 above), had heard the prosecutor, who had withdrawn after making his submissions. In a written submission of 5 September he had applied for the applicant's committal and prolongation of his detention under order no. 1/1990 (see paragraph 15 above). On 18 December 1990 the applicant sought leave to appear before the Indictment Division.
24. In a decision (no. 763/91) of 26 February 1991, which ran to 314 pages, the Indictment Division, after deliberating on 19 December 1990 and 15 February 1991, committed the applicant and fourteen of his co-accused for trial at the Athens Court of Appeal sitting as a court of criminal jurisdiction and composed of three judges (Trimeles efetio kakourgimaton). It indicted the applicant, as the chairman and managing director of a publicly owned company, on several counts of aggravated misappropriation and fraud, these being acts which constituted continuous offences. It also indicted him on a charge of making false statements in his capacity as a civil servant. It further held that the circumstances in which these crimes had been committed showed that Mr Kampanis was particularly dangerous, and accordingly ordered that his detention should continue.
With regard to the applications for leave to appear lodged by the applicant and his co-accused, the Indictment Division noted that the written submissions accompanying them were so comprehensive that oral clarification was not necessary. In addition, the pleadings lodged on their behalf after the prosecutor's submissions adduced no new material and did not affect the assessment of the evidence. More particularly, with regard to the applicant, the Indictment Division held that, without breaching Article 309 para. 2 of the Code of Criminal Procedure (see paragraph 37 below), it could refuse to examine his application on the ground that it had been submitted on 18 December 1990, and therefore after the hearing of 17 September 1990 (see paragraph 23 above).
25. On 29 March 1991 Mr Kampanis again applied for release and for leave to appear in person. He repeated his argument that the length of his detention on remand was in breach of the Constitution and the Code of Criminal Procedure. He submitted that the starting-point of this period was the date on which he was first imprisoned in respect of one of the acts constituting the continuous offence. Consequently, the period concerned had considerably exceeded the eighteen-month limit laid down by the Constitution and he should be released. In the alternative, he asked to be placed under judicial supervision under Article 291 para. 1 of the Code of Criminal Procedure (see paragraph 34 below).
26. On 2 April 1991 the Indictment Division heard the prosecutor, who lodged the case file and the submissions he had drawn up the previous day.
On 16 April 1991 the Indictment Division held a hearing at which the applicant addressed the court, in the prosecutor's presence. It appears from the record that he repeated in substance the arguments set out in his pleading of 15 April 1991. He was given until 23 April to file further observations.
27. In a decision (no. 1488/91) of 9 May 1991 the Indictment Division rejected the application. The two orders remanding the applicant in custody, made on 23 December 1988 and 31 July 1989 by the investigating judge of the Athens Criminal Court (see paragraphs 8 and 10 above), had lapsed on 21 June 1990 and 31 January 1991 respectively. Mr Kampanis's position was now governed only by the order of 24 May 1990 made by the special investigating judge of the Athens Court of Appeal (see paragraph 13 above). Consequently, the length of his detention had to be calculated from that date and not from the date on which the applicant was first imprisoned. The Indictment Division gave as the reasons for its decision the fact that there had been a number of separate offences each constituted by a separate criminal act, the need for a second investigation, the applicant's refusal to co-operate and the complexity of the case, whose elucidation had required numerous audits in addition to the judicial investigation.
In a further decision (no. 1549/91), of 17 May 1991, the same Indictment Division decided to prolong the applicant's detention on remand for an additional six months.
28. On 27 August and 20 September 1991 the Court of Cassation dismissed Mr Kampanis's appeals on points of law against the decisions of 9 and 17 May 1991 on the ground that no such appeal lay against those decisions (Articles 287 para. 2, 291 and 482 of the Code of Criminal Procedure).
29. The applicant was released on 24 November 1991. In the meantime, on 13 September 1991, the trial had begun before the Athens Criminal Court of Appeal, sitting with three judges.
30. On 30 January 1992 (judgment no. 232/92), at the end of a trial that had lasted four months, the court found the applicant guilty on a number of counts of aggravated misappropriation and sentenced him to seven years' imprisonment. It deducted from that term the period of two years, eleven months and three days he had spent in detention on remand and fixed the outstanding term at four years and twenty-seven days.
On 1 July 1994 the Athens Court of Appeal, sitting with five judges to hear an appeal lodged by Mr Kampanis against judgment no. 232/92, held that the offences should be classified as less serious offences and reduced the sentence to two years and six months' imprisonment, from which it deducted his detention on remand and his imprisonment up to that date (from 30 January 1992 to 5 May 1992). Lastly, it held that the State was under no duty to pay the applicant damages for the extra period during which he had been deprived of his liberty.
31. Article 6 para. 4 of the 1975 Constitution provides:
"The maximum length of detention on remand shall be laid down by law and may not exceed one year in connection with offences classified as serious crimes or six months in connection with less serious offences. In very exceptional cases these maximum limits may be extended by six or three months respectively by order of the competent Indictment Division."
32. At the material time, Article 287 of the Code of Criminal Procedure, which concerns the maximum limits of detention on remand, provided:
"1. Where, during an investigation, detention on remand has lasted six months in the case of offences classified as serious crimes, or three months in the case of less serious offences, the investigating judge must within the next five days send the principal public prosecutor at the Court of Appeal a report setting out the reasons why the investigation has not been completed. The latter shall transmit the case file to the public prosecutor, who shall refer it to the Indictment Division. After hearing the parties or their counsel, who shall be given notice to appear at least twenty-four hours before the deliberations, the Indictment Division shall give a final, reasoned decision on the question whether to prolong detention or release the accused.
2. In all cases, and including the period between the end of the investigation and the adoption of the final decision, detention on remand in respect of a single offence shall not exceed one year where the offence is classified as a serious crime or six months where it is a less serious offence. In exceptional circumstances the competent Indictment Division may make a reasoned order or orders, against which no appeal shall lie, extending these limits by up to six months or three months respectively ...
Where a case is pending before the investigating judge and the accused's detention on remand has been prolonged in accordance with paragraph 1 of this Article, the investigating judge must transmit the file to the public prosecutor, thirty days before the date on which the maximum period of detention on remand provided for in this paragraph is due to expire, together with a report stating the reasons why it is necessary to extend detention on remand. The public prosecutor shall forward the file and the above-mentioned report to the Indictment Division with his proposal. In all other cases the competent prosecutor must submit to the Indictment Division, at least twenty-five days before the date on which the maximum period of detention on remand provided for in this paragraph, or an extension period previously ordered, is due to expire, a proposal calling for the detention order to be either extended or rescinded.
...
6. Any uncertainty or disagreement about the maximum limits for detention on remand set out in the first and second paragraphs of this Article shall be determined by the competent Indictment Division, which must give the accused notice to appear forty-eight hours beforehand. Either the accused or the prosecutor may appeal on points of law against the decision of the Indictment Division."
This last paragraph was inserted by Law no. 1897/90, Article 14 of which gave it retrospective effect from 24 July 1974.
Article 287 paras. 1 and 2, as amended by Law no. 2207/94 of 1994, now provide as follows:
"1. Where detention on remand has lasted six months in the case of offences classified as serious crimes, or three months in the case of less serious offences, the Indictment Division shall give a final, reasoned decision on the question whether to prolong detention or release the accused. To that end:
(a) Where the investigation is still in progress, the investigating judge must, within the five days preceding the end of the period mentioned above, send the principal public prosecutor at the Court of Appeal a report setting out the reasons why the investigation has not been completed and transmit the file to the prosecutor at the Court of First Instance, who shall communicate it within ten days to the Indictment Division. Five days at the latest before the latter's deliberations the accused shall be given notice to appear, either in person or represented by his lawyer, whom he shall instruct by means of a letter countersigned by the prison governor. The Indictment Division shall give its decision after hearing the accused or his lawyer, if they are present, and the prosecutor. Where the investigation is being conducted by a judge of the Court of Appeal pursuant to Article 29, the decision shall be given by the Indictment Division of the Court of Appeal.
(b) After the end of the investigation, and within the five days preceding the end of the period mentioned above, the prosecutor at the court in which the case is to be tried or at the Court of Appeal ... must transmit the file, together with a reasoned proposal, to the Indictment Division which has jurisdiction pursuant to the provisions of the following paragraph. In other respects the provisions of sub-paragraph (a) shall apply.
2. In all cases, and until adoption of the final decision, detention on remand in respect of a single offence shall not exceed one year where the offence is classified as a serious crime or six months where it is a less serious offence. In exceptional circumstances these limits may be extended by six months or three months respectively by a reasoned decision, against which no appeal shall lie, of
(a) the Indictment Division of the Court of Appeal ...;
(b) the Indictment Division of the Court of First Instance ... Where the investigation is pending before the investigating judge and the accused's detention on remand has been prolonged in accordance with paragraph 1, the investigating judge must transmit the file to the prosecutor thirty days before the date on which the maximum period of detention on remand provided for in this paragraph is due to expire. The prosecutor shall forward the file to the Indictment Division, together with a reasoned proposal, within fifteen days. In all other cases the competent prosecutor must submit to the Indictment Division having jurisdiction, at least twenty-five days before the date on which the maximum period of detention on remand provided for in this paragraph, or an extension period previously ordered, is due to expire, a proposal calling for the detention order to be either extended or discharged. In other respects the provisions of the previous paragraph concerning service on the accused of notice to appear and the obligation to hear the accused and the prosecutor shall apply."
33. Where there are concurrent offences constituted by the same act or where an offence has been committed by a number of acts carried out over a period of time (continuous offence), the periods laid down in Article 287 are calculated from the date of the first order remanding the accused in custody for one of the concurrent offences or for one of the acts constituting the continuous offence (Article 288). On the other hand, where the accused is charged in respect of separate acts constituting separate offences, the time-limit for detention in respect of each of the offences concerned is specific and Article 288 is not applicable.
34. Where the accused's detention on remand is prolonged after his committal for trial, the competent Indictment Division may place him under judicial supervision at his or the prosecutor's request or even of its own motion (Article 291 para. 1).
35. In accordance with Article 306 of the Code of Criminal Procedure, the deliberations of indictment divisions are not public. Decisions are taken by a majority, after the prosecutor has been heard and has withdrawn (Article 138).
36. The investigating judge must inform the parties when the investigation has been closed and transmit the case file to the prosecutor. The parties may then request the prosecutor - even orally - to provide them with a copy of the submissions he intends to make to the Indictment Division. If they make such a request, the prosecutor is required to serve notice on them within twenty-four hours inviting them to appear before him for that purpose. From that time onwards the parties may seek leave to appear in person before the Indictment Division. If, on the other hand, they do not request a copy of the submissions, the prosecutor is discharged from any obligation to serve notice on them. However, his written submissions are filed at the public prosecutor's office and the parties may inspect them even if, in the meantime, the submissions have been sent to the Indictment Division (Article 308).
The Court of Cassation has held that an application for leave to appear in person must be lodged not later than the deliberations of the Indictment Division at which the prosecutor makes his submissions (Court of Cassation, judgments nos. 187/81 and 1813/81).
37. The Indictment Division's powers, after the end of the investigation, are governed by Article 309, which provides:
"1. The Indictment Division may (a) rule that there is no case to answer; (b) permanently discontinue the criminal proceedings; (c) suspend the criminal proceedings, but only for the crimes of murder, robbery with violence, extortion, theft ... or arson; (d) order further investigative measures; or (e) commit the accused for trial at the competent court.
2. On receipt of an application for leave to appear from one of the parties, an Indictment Division must order the parties' appearance so that they may provide in the presence of the prosecutor any necessary clarifications. It may, in addition, give counsel leave to present argument on the case orally. The Indictment Division may also make such an order or give such leave of its own motion. It may not reject an application for leave to appear except for precise reasons which must be explicitly set out in its decision. Where it orders the appearance of one of the parties, it must also summon and hear the other ..."
The reasons for which indictment divisions may dismiss applications for leave to appear are a matter for their discretion and have been laid down in case-law. The Government cite in their memorial the examples of the danger of disorder, the risk of the accused's escape or his ill-treatment at the hands of the public, the impossibility of a rapid transfer, etc. However, the majority of applications for leave to appear (99%, according to certain estimates) are refused on the ground that the accused has had a sufficient opportunity to set out his arguments in his pleading. Nevertheless, it is established case-law that a rejection for reasons not explicitly set out is null and void under Article 171 para. 1 (d).
38. An Indictment Division commits the accused for trial when it considers that there is sufficiently cogent evidence to support a charge alleging a specific offence (Article 313). At the same time, if the accused is still detained, it decides whether he should remain in detention or be released (Article 315 para. 1).
39. In judgment no. 334/1982, to which the prosecutor referred in his submissions of 5 February 1991 opposing Mr Kampanis's application for leave to appear (see paragraph 22 above), the Court of Appeal held:
"... the accused's right to seek leave to appear before the Indictment Division in order to clarify his argument exists ..., after the investigation has been closed and until adoption of the final decision, only in those cases specifically provided for by law, such as review of the length of detention on remand (Article 287 of the Code of Criminal Procedure). It follows that an application for leave to appear in person lodged by an accused person seeking to have his detention on remand terminated or to be placed under judicial supervision is inadmissible. Moreover, it was not possible under the previous legislation ... where the Indictment Division was considering an application for release ... That is evident more particularly from (a) the title under which Article 309 of the Code of Criminal Procedure appears, namely 'Jurisdiction of the Indictment Division after the investigation has been closed', (b) the position of paragraph 2 of that Article just after paragraph 1, which lists the circumstances in which the Indictment Division has to rule on the merits of a case, (c) the fact that whereas the appearance of the accused or their counsel is provided for by Article 287 - which governs matters relating to the maximum limits of detention on remand - it is not provided for by Articles 284, 285, 286 and 291 ..., and (d) the purpose of Article 309 para. 2 ..., which gives each of the parties the opportunity to present argument to the Indictment Division clarifying, or providing further particulars of, the case before the court. But that opportunity is only conceivable where the Indictment Division has to rule on the merits of a case. Adversarial argument before the Indictment Division concerning an application to substitute judicial supervision for detention on remand is moreover inconceivable ... That being the case, the appeal before the court is not provided for by law and must be rejected as inadmissible."
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-24008
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VARGA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Štefan Varga, is a Slovakian national, who was born in 1963 and lives in Košice. He was represented before the Court by Mr A. Fuchs, a lawyer practising in Košice. The respondent Government were represented by Mr P. Kresák, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 27 May 1986 until 15 July 1988 the applicant served a prison sentence in the Dubnica nad Váhom prison. From 15 July 1988 until 1989 he continued to serve this sentence in the KošiceŠaca prison. Letters which he sent from the prison to his parents were opened, read and censored by the prison authorities.
From 5 July 1990 to 31 December 1991 the applicant was detained on remand in the Košice detention centre. Letters which he sent from the detention centre to his parents were monitored by the detention centre authorities and opened and read by the police investigator in charge of his case.
The applicant further served other prison sentences in the KošiceŠaca prison (from 1992 until 1994), in the Ružomberok prison (from 1994 until 1995) and in the KošiceŠaca prison (from 1995 until 1997).
On 28 July 1997 the applicant addressed a petition (podnet) to the Constitutional Court in which he complained about interference with his correspondence in the period between January and 24 July 1997 while serving a prison sentence. On 27 August 1997 the Constitutional Court declared the petition admissible. The Constitutional Court informed the applicant several times that legal representation was mandatory in the proceedings before it and requested him to appoint a lawyer. On 8 October 1997 the Constitutional Court discontinued the proceedings as the applicant had failed to comply with the request.
On 21 October 1998, for the second time, the applicant seized the Constitutional Court. He filed a petition alleging a violation of his right to respect for his correspondence. He referred to the monitoring of his correspondence between 1986 and 1989 in the Dubnica nad Váhom prison and the KošiceŠaca prison, between 1990 and 1991 in the Košice detention centre and between 1996 and 1997 in the KošiceŠaca prison. He apparently submitted copies of letters addressed by him to his father which bore the official stamps showing the date on which the letters had been read by the prison authorities.
In a letter of 15 December 1998 a single Constitutional Court judge informed the applicant that the Constitutional Court had no jurisdiction ratione temporis to deal with his petition. He noted that all the letters which the applicant had submitted and all the official stamps showing that the prison authorities had read these letters dated back to the period prior to the establishment of the Constitutional Court on 15 February 1993.
In the late 1998 and early 1999 the applicant addressed the Dubnica nad Váhom prison administration, the public prosecution service, the KošiceŠaca prison administration and the Ružomberok prison administration with complaints about interference with prisoners’ correspondence.
In their respective letters of 30 November 1998, 8 January, 14 April and 15 April 1999 the director of the Dubnica nad Váhom prison, the Košice I District Office of Public Prosecution, the director of the KošiceŠaca prison and the director of the Ružomberok prison informed the applicant about the relevant provisions of the Prison Sentences Execution Act and the Prison Sentences Execution Orders governing monitoring of prisoners’ correspondence. They observed that the applicable legal rules had not been breached in the applicant’s case.
In 2000 the applicant lodged an action against (i) the Ministry of Justice; (ii) the General Directorate of the Prison Administration (Generálne riaditeľstvo zboru väzenskej a justičnej stráže); (iii) the Director General of the Prison Administration; (iv) the Prison Administrations in Ružomberok, Dubnica nad Váhom and Košice–Šaca prisons; and (v) several officials of the Prison Administration. He sought protection of his personal integrity and compensation for moral damage in connection with the alleged violation of the secrecy of his correspondence while in detention and serving his prison sentences.
On 11 February 2002 the Košice II District Court (Okresný súd) dismissed the applicant’s request for an exemption from the obligation to pay the court fee and for legal aid. On 31 May 2002 the Košice Regional Court (Krajský súd) upheld this decision.
On 28 April 2003 the District Court discontinued the proceedings as, despite its five previous requests and warnings, the applicant had failed to pay the court fee. On 31 July 2003, on the applicant’s appeal, the Košice Regional Court upheld this decision.
On 3 October 2003, for the third time, the applicant again seized the Constitutional Court with a complaint of an interference with his correspondence while in the KošiceŠaca prison between January and 24 July 1997 and of the discontinuation of the civil proceedings on his civil action of 2000.
On 6 November 2003 the Constitutional Court declared the complaint inadmissible. It found that the applicant had raised his new complaint about the interference with his correspondence outside the two months’ timelimit pursuant to Article 53 (3) of the Constitutional Court Act. The Constitutional Court further found that the applicant had failed to exhaust legal remedies as regards his complaint about the discontinuance of his civil proceedings in that he had not lodged an appeal on points of law against the decision of the Regional Court of 31 July 2003.
Article 22 provides as follows:
“1. Secrecy of correspondence, other communications and written messages delivered by post and protection of personal information shall be guaranteed.
2. No one shall violate the secrecy of letters, other communications and written messages kept private or delivered by post or otherwise, except in cases specified by law. This provision applies to communications delivered by telephone, telegraph and other similar means.”
Article 127, as in force from 1 January 2002, provides that:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference ... At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ...
Article 130 (3), as in force until 30 June 2001, provided that:
“The Constitutional Court may commence proceedings also upon a petition (podnet) submitted by legal entities or individuals claiming a violation of their rights.”
The implementation of the above provision of Article 127 of the Constitution is set out in more detail in sections 49 to 56 of the Constitutional Court Act No. 38/1993 Coll., as amended. The relevant amendment entered into force on 20 March 2002. Pursuant to Section 53 (3):
“A constitutional complaint shall be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period shall commence when the complainant could have become aware of them.”
The lex generalis governing execution of prison sentences is the Prison Sentences Execution Act No. 59/1965 Coll., as amended. Its Section 12 deals with the correspondence of convicted prisoners. Paragraph 1, as amended from 1 July 1990 by Act 179/1990 Coll., provides that:
“A convicted prisoner may receive and send correspondence without restriction. The prison director or other persons authorised by him may inspect (nahliadnuť) prisoners’ correspondence with the exception of petitions, complaints or requests addressed to public authorities and correspondence with prisoners’ lawyers sent to their professional address.”
Further details concerning the execution of prison sentences are set out in the Prison Sentences Execution Orders issued by the Minister of Justice in the form of a Regulation published in the official Collection of Laws. The Prison Sentences Execution Order No. 332/1990 Coll. was in force from 21 October 1991 until 25 May 1994. Section 46 dealt with the correspondence of convicted prisoners. Its relevant part provided as follows:
“1. Letters sent by or to convicted prisoners may be inspected (nahliadnuť) without their consent only by the prison director or by the prison’s social workers authorised by him. This authorisation shall be made public in the prison’s ordinance (ústavný poriadok).
4. In the event that letters sent to convicted prisoners are inspected, they must be handed over to them without delay.
6. The provisions of this Section do not relate to correspondence under Section 56 of the Prison Sentences Execution Order [dealing with the protection of convicted prisoners’ rights] which is sent to convicted prisoners by the authorities referred to in Section 12 (1) of the Prisons Sentences Execution Act [see above].”
On 25 May 1994 the Prison Sentences Execution Order No. 125/1994 Coll. came into force. Convicted prisoners’ correspondence is governed by Section 41 which, insofar as relevant, provides as follows:
“1. Incoming or outgoing correspondence of convicted prisoners can be inspected (nahliadnuť) without their consent only by the prison director or members of the prison staff authorised by him. In the event that letters sent to convicted prisoners are inspected, they must be handed over to them without delay with the exception of the correspondence referred to in Paragraph 2.
2. Letters with offensive content which damage the interests of the convicted prisoner or other persons or entities and letters encouraging criminal activity or containing unauthorised objects shall be placed in the convicted prisoner’s personal file. He or she shall be informed accordingly. Any further action shall depend on the nature of the information or object retained.”
According to Article 11:
“Any natural person shall have the right to protection of his or her personal integrity (osobnosť), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.”
Pursuant to Article13:
“1. Any natural person shall have the right to request that an unjustified infringement of his or her personal integrity be stopped, that the consequences of such an infringement be eliminated, and that he or she be provided appropriate satisfaction.
2. In cases when the satisfaction obtained under paragraph 1 [of that Article] is not sufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person shall be entitled to monetary compensation for nonpecuniary damage.
3. When determining the amount of the compensation under paragraph 2 [of that Article], the courts shall take into account the seriousness of the prejudice suffered by the person concerned and the circumstances under which the violation of that person’s rights occurred.”