ITEMID: 001-102443
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANAYO v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008.
8. The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006.
9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again.
10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see paragraph 28 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins’ birth, to be allowed contact with the twins.
11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present.
12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied.
13. The District Court further considered that contact between the applicant and the twins was in the children’s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children’s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant’s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant’s access to the twins would not adversely affect Mr and Mrs B.’s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned.
14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B.’s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant’s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation.
15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant’s request for access to the twins.
16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below) nor could he contest Mr B.’s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below).
17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties (enge Bezugsperson) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them.
18. As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children’s best interests.
19. The fundamental right to respect for one’s family life and one’s parental rights under Article 6 of the Basic Law (see paragraph 24 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant.
20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father’s role. It was the legislator’s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child.
21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany (no. 74969/01, 26 February 2004) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody.
22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07).
23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant’s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008.
24. Article 6 of the Basic Law, in so far as relevant, provides:
(1) Marriage and the family shall enjoy the special protection of the state.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.
25. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).
26. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4).
27. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, provides for persons with whom the child has close ties (enge Bezugspersonen) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis.
28. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).
29. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).
30. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child.
31. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, it is to be established by the family court (Article 1600d § 1 of the Civil Code).
32. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law.
33. In a considerable number of States (comprising, in particular, Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by challenging, first, the paternity presumption in place, partly within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other non-custodial parent, subject to the child’s best interests.
34. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which has been submitted by the Government, the same applies in Greece. That report, however, interprets differently the provisions applicable in France and Spain. Research undertaken by the applicant confirms the Court’s research notably in respect of the legal situation in France and Spain. The applicant submits that a biological father may also challenge the legal father’s paternity in circumstances similar to those in the present application in several further countries, inter alia, in Norway.
35. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter respect the law in force in Belgium and Luxembourg).
36. According to the expert report drawn up by the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey. The applicant interprets differently the provisions applicable in Italy and Switzerland; the report submitted by the Government, however, confirms the Court’s findings in respect of the legal situation in these countries.
37. In those latter Member States, it is thus only open to the biological father to apply for contact as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and (partly) to other relatives.
38. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic.
39. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different pre-conditions apply for that father to be granted contact if such contact is in the child’s best interests. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interests of the child, without additional pre-conditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child unless contacts run counter to the child’s best interests. According to Section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is to be regarded as a “close person” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden) and according to Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey).
40. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child. That report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise.
VIOLATED_ARTICLES: 8


ITEMID: 001-86875
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BEVACQUA AND S. v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;No violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The first applicant, Mrs Valentina Nikolaeva Bevacqua, is a Bulgarian national who was born in 1974 and at the relevant time lived in Sofia. In 2003 or 2004 she moved to Italy. The application is submitted by the first applicant on her own behalf and also on behalf of her son S. (“the second applicant”), a minor, who was born in 1997.
6. The first applicant married Mr N. in 1995 and gave birth to S. in January 1997.
7. Later, the relations between the spouses soured, Mr N. became aggressive and on 1 March 2000 the first applicant left the family home with her son and moved into her parents’ apartment. On the same day the first applicant filed for divorce and sought an interim custody order, stating, inter alia, that Mr N. often used offensive language, battered her “without any reason” and did not contribute to the household budget.
8. On 7 March 2000 a judge at the Sofia District Court examined the case file and fixed the date of the first hearing for 11 April 2000, without examining the request for an interim order.
9. During the first two months following the separation, Mr N. visited his son every day and took him to his apartment on weekends, with the first applicant’s consent.
10. On 11 April 2000 the District Court could not proceed with the examination of the divorce case as Mr N. had been taken ill and did not appear.
11. On 6 May 2000 Mr N. did not bring S. home after a walk. He telephoned the first applicant and told her that his son would live with him. For the next six days he refused the first applicant’s requests for meetings or telephone conversations with her son.
12. On 9 May 2000 the first applicant complained to the prosecuting authorities. The relevant prosecutor apparently gave instructions that Mr N. should be summoned and served with an official warning. That was not done until 22 June 2000.
13. On 12 May 2000 the first applicant went to see her son at the kindergarten and took him to her home. In the evening Mr N. telephoned and then appeared outside the first applicant’s home. He was shouting and banging on the door, thus frightening the child and the first applicant. Mr N. eventually managed to enter the apartment, when the first applicant’s father came home. He allegedly hit or pushed the first applicant in the presence of her parents and the child. At one point Mr N. seized his son, but the first applicant was trying to hold him. The child was screaming. Eventually, Mr N. left with the child.
14. On 18 May 2000 the first applicant visited a forensic doctor who noted a small bruise on her face and a bruise on her hip. On 25 May 2000 she filed a complaint with the District Prosecutor’s Office and enclosed the medical certificate.
15. The first applicant also sought the help of a non-governmental organisation assisting female victims of domestic violence. She was offered the possibility to stay with her son in a hostel for such victims in Bourgas. On 25 May 2000 the first applicant collected her son from the kindergarten and travelled with him to Bourgas. She spent four days at the hostel there without disclosing her whereabouts to Mr N.
16. Mr N. complained to the local Juveniles Pedagogic Unit (see paragraph 43 below), stating that the first applicant had abducted their son. The first applicant was summoned by the police. On 31 May 2000 she returned to Sofia and met the district juveniles inspector. She explained that she had been the victim of violence and that her son’s health was in danger because of the father’s violent behaviour. It appears that the inspector disbelieved the first applicant’s version of the events and allegedly insisted that she could be prosecuted for having abducted her son.
17. On the same day in the evening Mr N. visited the first applicant in her home, allegedly threatened her and took their son away.
18. On the following day, 1 June 2000, the juveniles inspector organised a meeting between the first applicant, her former husband and the child. According to the first applicant, the meeting lasted four hours. The child was asked whether he preferred to be with his mother or with his father. The meeting resulted in an oral agreement between the parents, according to which the child would live with his father for a month and then with his mother for another month. As a result of this agreement Mr N. withdrew his complaint for abduction.
19. According to the first applicant, the agreement was only implemented for a very limited period.
20. In the following days Mr N. allowed contacts between the first applicant and her son. On an unspecified date the child was ill and the first applicant took care of him in Mr N.’s apartment.
21. On 13 June 2000 the first applicant appeared before the District Court for a hearing in the divorce proceedings. She was not legally represented. Mr N. did not appear. His lawyer was present. The first applicant stated that she wished to pursue her claims. The court did not examine the request for an interim order. The first applicant did not raise the issue. The court fixed a time-limit for reconciliation, as required by law, and adjourned the examination of the case until 29 September 2000.
22. On 22 June 2000 the police summoned Mr N. and gave him an official warning in relation to the first applicant’s complaint of 9 May 2000 (see paragraph 12 above). As a result Mr N. allegedly became aggressive. On 28 June 2000, when he brought S. for a visit to his mother’s apartment, Mr N. reacted angrily to remarks by the first applicant and hit her in their son’s presence. On the next day the first applicant visited a medical doctor who noted a bruise on her left eyelid and a swollen cheek. She also reported pain in her right wrist.
23. On 3 and 6 July 2000 the first applicant complained to the juveniles inspector at the local police station but was told that nothing could be done and that the dispute should be decided by the courts.
24. In July and August 2000 the first applicant complained to the Ministry of the Interior, stating that they should assist her to obtain the custody of her child and that measures should be taken to protect her son, who was in danger because Mr N. was not taking care of him properly and was aggressive towards her. The first applicant complained that nothing had been done in this respect by the police. In August 2000 she received replies stating that the matter had been examined and that no unlawful conduct on the part of police officers had been noted. The police had done what they could and the remaining issues concerned a private dispute.
25. On 11 September 2000 the first applicant filed written submissions with the District Court reiterating her request for an interim order. She informed the court about the relevant events since 6 May 2000 and referred to her complaints to the prosecuting authorities. She also stated that her son had been living in conditions which endangered his development. The first applicant sought leave to have two witnesses examined in this respect.
26. On 12 September 2000 the judge examined the applicant’s submissions in private and decided that the request for an interim order should be dealt with on 12 October 2000, not at the hearing fixed for 26 September 2000.
27. On 26 September 2000 the District Court held a hearing in the divorce proceedings. It noted the failure of the parties to reconcile and fixed a hearing on the merits for 14 November 2000.
28. On 12 October 2000 the District Court held a hearing on the issue of interim measures. Mr N. requested that the files of the prosecutors and the police who had examined the first applicant’s complaints be admitted in evidence. He stated that those authorities had heard impartial witnesses – several neighbours – and had convincingly established that the first applicant’s allegations about physical violence were unfounded. The first applicant’s lawyer objected, stating that the files could be relevant to the merits of the divorce proceedings but should not be examined in the interim measures procedure. The court decided to adjourn the hearing until 14 November 2000 in order to allow the production of the prosecutors’ files.
29. On 14 November 2000 the District Court dealt with the request for an interim order. It heard one witness for each party. The first applicant’s father, who was heard as a witness, confirmed that Mr N. had been aggressive on two occasions and that quarrels often erupted between the child’s parents. A relative of Mr N. testified that he took good care of the child. The first applicant also presented a written opinion by a psycho-therapist working for the non-governmental organisation whose help she had solicited. The therapist described the first applicant’s visits to the centre for victims of domestic violence and stated that in her opinion the first applicant had suffered a strong emotional upset as a result of the behaviour of Mr N. and the authorities’ passive attitude. Mr N. disputed the statements contained in the written opinion. The court decided that that was tantamount to contesting the authenticity of a document and invited the parties to adduce evidence in this respect. Having regard to the need to give the parties time to adduce such evidence and noting that the prosecutors’ files concerning the applicants’ complaints had not been transmitted to it, the District Court adjourned the matter until 12 December 2000. The hearing listed for 12 December 2000 was later adjourned on unspecified grounds.
30. The next hearing was held on 13 February 2001. In relation to the proceedings concerning the authenticity of the psycho-therapist’s written opinion, the first applicant’s lawyer presented documents demonstrating that the non-governmental organisation for which the therapist worked had been registered in 1997. Mr N.’s lawyer stated that in accordance with legislation in force since 1 January 2001 non-governmental organisations needed re-registration. On that basis he objected to the admission in evidence of the written opinion of the psycho-therapist. The court interpreted that objection as a challenge to the authenticity of the registration documents and invited the parties to adduce evidence in that respect.
31. At that point, the first applicant withdrew her request and asked the court to rule on the merits of the divorce claims, including the child custody claim. Thereupon, the court terminated the interim measures proceedings. It then heard two witnesses. A neighbour testified that she had heard the spouses quarrelling often in the past and had seen bruises on the first applicant’s body. The latter had complained that Mr N. battered her. A colleague of Mr N. testified that he had never seen him being aggressive. The court also admitted in evidence the prosecutors’ files concerning the first applicant’s complaints submitted in 2000. As the parties sought leave to examine other witnesses, the court adjourned the hearing until 24 April 2001.
32. From the summer of 2000 the first applicant could only see her son at his kindergarten as the visits to Mr N.’s home created tension. On 7 March 2001 she collected her son and brought him to her home. Mr N. complained to the prosecution authorities and the police and also wrote to the judge dealing with the divorce proceedings. As a result, on 19 March and 17 April 2001 the first applicant was summoned by the police and given official warnings. According to the first applicant, Mr N. also threatened her with physical violence but she kept the child. According to Mr N., on 11 March 2001 in the evening he was attacked by men hired by the first applicant, in her presence.
33. The last hearing in the divorce proceedings was held on 24 April 2001. In accordance with the Child Protection Act (see paragraph 47 below), an expert of the newly created local Social Care Office gave an opinion after having studied the file and met the child. He reported that the child was afraid of his father as he had battered his mother and that the child preferred to live with his mother.
34. By judgment of 23 May 2001 the District Court pronounced the divorce and found that both spouses had been responsible for the failure of their marriage. The court further considered that both parties had been good parents but that in view of the low age of the boy he needed his mother. Therefore, the first applicant obtained custody of her child and Mr N. was given visiting rights.
35. Mr N. appealed, arguing that the allegations that he had been violent were untrue and that he had always cared better for his child.
36. In the appeal proceedings the Sofia City Court held a hearing on 19 March 2002. It heard two witnesses who confirmed Mr N.’s aggressive behaviour.
37. On 21 March 2002 the Sofia City Court upheld the lower court’s judgment but considered that there was ample evidence that Mr N. had been aggressive and had battered the first applicant during their marriage. Such behaviour was a bad example for a young boy to witness. The first applicant was therefore better suited to raise the child.
38. On 18 June 2002 the first applicant visited Mr N.’s apartment, accompanied by two friends, to collect her belongings. Her former husband became aggressive and battered her. On the following day the first applicant visited a forensic doctor who noted bruises on her face, right arm and armpit and her left hip. She complained to the prosecution authorities, which by decisions of October and December 2002 and January 2003 refused to institute criminal proceedings against Mr N., noting that it was open to the first applicant to bring private prosecution proceedings, as the alleged injuries fell into the category of light bodily injuries.
39. In accordance with Article 261 of the Code of Civil Procedure, a court examining a divorce case shall order interim child custody measures upon request of a party to the proceedings.
40. The Supreme Court has held that in principle no such measures should be ordered during the mandatory two-month reconciliation period except where the interest of the children so requires and, in particular, where delaying them may adversely affect the children’s development and upbringing (procedural decision no. 86 of 6 June 1973 in case no. 1518/73).
41. Article 71 § 2 of the Family Code provides that disputes about child custody between parents living apart may be submitted for examination to the local district court. This provision concerns disputes that have not been submitted for adjudication in the context of divorce or other proceedings (argument from Article 95 of the Code of Civil Procedure).
42. A party to pending civil proceedings may file an appeal against delays in the proceedings, in accordance with Article 217a of the Code of Civil Procedure. The appeal is examined by the President of the upper court, who may order specific measures to speed up the proceedings. It is unclear whether an appeal against delays may also be directed against delays in the examination of requests for interim measures.
43. Sections 26 and 27 of the Antisocial Behaviour of Minors Act 1958, amended, set up Juveniles Pedagogic Units at municipal level. The Units are staffed by inspectors appointed by the Ministry of the Interior. Their task is to assist the prosecution authorities and the police in the investigation of offences committed by minors and also in the investigation of offences in which minors were victims. Juveniles Pedagogic Units have no power to issue binding orders on child custody and access issues.
44. Under Article 161, in conjunction with Articles 129 and 132 of the Penal Code, criminal proceedings in respect of “medium bodily injury” wilfully inflicted by a spouse, parent, child, brother or sister of the victim may only be instituted by the victim. According to Article 129(2), injuries having long-lasting repercussions on one’s health without being life-threatening or injuries that may be life-threatening but do not result in long-lasting repercussions are considered “medium bodily injuries”. Within the same category fall injuries causing long-lasting difficulties to the hearing, sight or limb movement, disfiguring of the face or other body parts, as well as injuries such as a broken jaw or teeth that cause difficulties in chewing and speaking.
45. Under Article 161, in conjunction with Articles 130-132 of the Penal Code, criminal proceedings in respect of wilfully inflicted “light bodily injury” may only be instituted by the victim, except where a State official is involved or in cases of repeated offences. According to Article 130(1), injuries other than those considered as heavy or medium bodily injuries fall within the category of “light bodily injuries”. The courts have held that facial bruises, a broken nose and head contusions without loss of consciousness are examples of light bodily injuries (Supreme Court interpretative circular ППВС № 3, 27.11.1979).
46. Under the Code of Criminal Procedure, where criminal proceedings are instituted by the victim, he or she acts as private prosecutor. The proceedings are discontinued if the victim fails to appear when summoned or abandons the case.
47. The Child Protection Act, which came into force on 17 June 2000, instituted a State Child Protection Agency and municipal Social Care Offices empowered, inter alia, to order protection measures in respect of children in danger. In accordance with the transitory provisions of the Act, the Agency and the Offices became operational not earlier than in February 2001, when the relevant regulations and instructions were adopted.
48. The Protection Against Domestic Violence Act, which was enacted in March 2005, provides for administrative and policing measures in cases of domestic violence. In particular, the relevant court may issue injunctions to remove the perpetrator from the common home, ban him from approaching the victim’s home, workplace or place of social contacts, temporarily remove the child from the custody of the perpetrator and impose compulsory education programs. Failure to comply with the measures imposed by the court may result in fines, arrest and prosecution.
49. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that Member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.
50. The Committee of Ministers recommended, in particular, that Member states should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, handicapped or dependent victims, or abuse of the position of the perpetrator. The recommendation also stated that Member states should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings.
51. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.
52. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4(c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”.
53. In his third report, of 20 January 2006, to the Commission on Human Rights of the UN Economic and Social Council (E/CN.4/2006/61), the Special Rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”. This conclusion was based mainly on analysis of developments in the case-law of several international bodies, including this Court (reference to Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII), the Inter-American Court of Human Rights (reference to the case of Velasquez Rodriguez v. Honduras), the Inter-American Commission of Human Rights (reference to Report no. 54/01, Case 12.051, Maria da Penha Maia Fernandes (Brazil)) and the committee monitoring the UN Convention on the Elimination of All Forms of Discrimination against Women (reference to the case of A.T. v Hungary – 2005).
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102910
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF VASYLIV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1928 and lives in Stryy, the Lviv Region.
5. On 18 March 2004 the applicant lodged a claim with the Stryy Court against the State Social Protection Department and the State Pension Fund for recovery of a yearly allowance, compensation for non-pecuniary damage and for re-calculation of her pension.
6. On 23 June 2004 the Stryy Court rejected the applicant’s claims as unsubstantiated. On 12 August 2004 the Stryy Court rejected the applicant’s request for interpretation of the judgment.
7. On 4 October 2004 the Lviv Regional Court of Appeal quashed the judgment of 23 June 2004 and remitted the case for new consideration.
8. On 28 October 2004 the parties appealed in cassation. The applicant had to re-lodge her appeal in cassation as she had initially failed to comply with procedural requirements.
9. On 2 March 2007 the Supreme Court transferred the case for consideration to the Higher Administrative Court.
10. On 11 February 2009 the Higher Administrative Court dismissed the parties’ appeals in cassation.
11. On 1 April 2009 the Supreme Court rejected the applicant’s request for extraordinary review of the decision of 11 February 2009.
12. The case is currently pending before the first-instance court.
13. In the course of the proceedings before the first-instance court and court of appeal there were seventeen hearings held. The applicant supplemented her claims on two occasions. She lodged requests for rectification of the hearing records, for studying the case-file, for obtaining additional evidence and for interpretation of the judgment.
14. In October 2004 the applicant and her daughter instituted defamation proceedings before the Stryy Court against the State Pension Fund and S., a private person.
15. On 1 December 2004 the Stryy Court left the claim without examination for the claimants’ failure to substantiate it and to pay the court fee.
16. On 28 February 2005 and 10 September 2007, respectively, the Lviv Regional Court of Appeal and the Khmelnytsk Regional Court of Appeal (acting as a court of cassation) upheld the decision of 1 December 2004.
17. In December 2004 the applicant and two other persons lodged with the Lychakiv Court an administrative claim against the Lviv Regional State Administration, alleging incorrect calculation of their pension and unlawfulness of the claim for debts issued by the local gas supplying company.
18. On 14 February 2005 the Galytskyy District Court of Lviv found that the claim did not fall to be examined in the framework of the administrative procedure and was to be dealt under the rules of civil procedure. Accordingly, it dismissed the claim.
19. On 18 April 2005 and 23 August 2006 the Lviv Regional Court of Appeal and the Higher Administrative Court, respectively, upheld the decision of 14 February 2005.
20. On 24 October 2006 the Supreme Court rejected the applicant’s request for extraordinary review of the ruling of 23 August 2006.
21. In April 2005 the applicant and her daughter instituted defamation proceedings in the Stryy Court against the State Pension Fund and S., a private person.
22. On 20 May 2005 the Stryy Court left the claim without examination for the claimants’ failure to pay the court fee.
23. On 18 July 2005 and 25 October 2007, respectively, the Lviv Regional Court of Appeal and the Khmetlnytsk Regional Court of Appeal (acting as a court of cassation) upheld the decision of 20 May 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22085
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: HILPERT v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, a German citizen, resides in Berlin.
In 1999, the applicant filed an action with the Basel-Stadt Civil Court (Zivilgericht) against his former lawyer, claiming damages of 140,000 Swiss francs (CHF) for negligent representation. Subsequently, he filed a request for legal aid.
On 28 February 2000, the Civil Court dismissed the applicant’s request for legal aid as he had not demonstrated his indigence and, after a summary examination of the case, as the action lacked prospects of success.
Against this decision the applicant filed a complaint (Beschwerde) with Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt which the latter declared inadmissible on 28 March 2000. In its decision the court stated, inter alia:
“whereas according to Section 243 of the Code of Civil Procedure (hereafter: CCP) a complaint must be filed within 10 days after the contested decision was rendered ...
whereas the contested decision was served on the applicant’s representative on 29 February 2000; the period for filing the complaint therefore began on 1 March 2000 and ended on 10 March 2000;
whereas according to S. 34a § 1 CCP the time-limit will be complied with if the complaint was filed with the court, or transmitted to the Swiss postal service, at the latest on the last day;
whereas if a person abroad files a complaint, it will suffice if the complaint is filed with a Swiss diplomatic or consular representation abroad, though it is insufficient if the submission is merely transmitted to the foreign postal service ... ;
whereas the applicant transmitted his complaint to the German postal service in Berlin on 10 March 2000, i.e., on the last day of the time-limit, and that the complaint arrived only on 14 March 2000 in the area of the Swiss postal service, and was received by the Civil Court on the same day;
whereas the complaint was, therefore, filed only after the expiry of the time-limit for which reason it cannot be admitted on account of the delay ...”
The applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht) in which he complained, inter alia, that it was customary (üblich) to accept the German postal service as the recipient for such submissions, and that as he was a German, it was not possible for him to send them to the Swiss embassy in Germany.
On 6 June 2000 the Federal Court partly dismissed and partly rejected the applicant’s public law appeal. It considered that S. 34a CCP corresponded with S. 12 of the Federal Act on International Private Law (Bundesgesetz über das internationale Privatrecht) according to which it sufficed for persons living abroad to submit their documents on the last day of the time-limit to the Swiss diplomatic or consular representation. The judgment continued:
“In this respect there has been no arbitrary interpretation or application of S. 34a CCP. Finally, insofar as it has been maintained that the Swiss diplomatic or consular representations in Germany would not accept submissions from non-Swiss citizens destined for courts, this is a mere assertion, which has not been substantiated and which need not be dealt with any further ...”
On 27 June 2000, upon the applicant’s request, the Swiss embassy in Berlin wrote a letter to the applicant as follows:
“Many thanks for your letters of 22 and 24 June 2000.
I can herewith confirm that - based on internal instructions - submissions to cantonal courts may not be transmitted by diplomatic bag (Kurier) via a Swiss foreign representation.
Furthermore, I must inform you that mail may not be deposited at the embassy which, as you claim in your letter of 22 June 2000, the opposing party has suggested.”
S. 34a of the Code of Civil Procedure of the Canton of Basel-Stadt provides, inter alia, that a time-limit shall be complied with if the submission concerned is transmitted, on the last day of the time-limit, to the Swiss postal service, or, if the person is abroad, if it is submitted on this day to a Swiss diplomatic or consular representation. S. 243 provides, inter alia, that a complaint against a decision must be filed in writing within 10 days after the decision was rendered.
S. 12 of the Federal Act on International Private Law states that, in order for a person abroad to comply with a time-limit before Swiss authorities, it suffices if the submission arrives on the last day of the time-limit at a Swiss diplomatic or consular representation.


ITEMID: 001-5498
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: HAY v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant is a British citizen, born in 1940 and resident in Kent. The second applicant is also a British citizen, born in 1946 and resident in London. They are brother and sister. Before the Court they are represented by Ms Chitra Karvé, legal officer for the organisation Liberty, in London.
The respondent Government are represented by Ms Ruma Mandel, Foreign and Commonwealth Office, as Agent for the United Kingdom Government.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
Events of 13 October 1993
The applicants’ brother, Ian Hay, was shot dead outside the family home, Crabadon Manor, Devon, by officers of the Devon and Cornwall Constabulary (DCC) on 13 October 1993. Crabadon Manor is located in an isolated and rural location.
On 30 April 1993, Ian Hay went to his local police station and voluntarily handed in a number of legally held weapons to Inspector Martin. The Inspector was concerned about the state of Ian Hay’s mental health and, on 11 May 1993, he attended Crabadon Manor and seized more weapons. On 11 September 1993, Ian Hay asked for the return of some of the weapons. However, Inspector Martin refused until such time as Mr Hay could produce a certificate as to the state of his mental health.
On 1 May 1993, Mr Hay’s doctor, Dr Lewis, had received a message from Mr Hay’s neighbour saying that Mr Hay was displaying irrational behaviour whilst in possession of a weapon. The neighbour was concerned as to the state of Mr Hay’s mental health.
On 13 October 1993, there were two incidents involving firearms. Firstly, at about 11 a.m., Mr Hay fired a gun eight times into a sheep trailer at a nearby farm in the presence of the farmer’s wife. The woman was very frightened and stated that Mr Hay was in an emotional state and had said to her after loading the gun, “This is what I will do to the police if they come near me”. Later, at 1.50 p.m., Mr Hay went into the local public house armed with a gun with a bayonet attached and a hand gun. He again displayed irrational behaviour, and fired one of the guns several times into the open fireplace in front of the barmaid. He then reloaded the gun in her presence. The barmaid telephoned the police. A neighbour had already telephoned. A further shot was fired in the street outside. Mr Hay then returned to Crabadon Manor where he had lunch with his mother.
At 1.49 p.m. the DCC at Paignton had received the call from the neighbour of the public house. Police vehicles were ordered to the scene, a police surveillance helicopter took off around 2.00 p.m. and the instructions to the helicopter crew were to keep Mr Hay in view until there could be actual physical containment by a firearms team. A firearms unit was notified. By chance, 10 firearms officers happened to be on a training exercise and so they were used, rather than following the standard procedure.
The DCC had a pre-arranged command and control structure for incidents of this kind, dividing the command into Gold, Silver and Bronze. Gold was in overall command, determined strategy and had overall responsibility for the provision of intelligence, resources and logistics. The Gold Commander was of senior rank and Gold Control was based in the operations room at police headquarters. Silver Commander was the officer responsible for the tactical control of an incident at the scene. He was supported by Silver Control which was based at the nearest police station to the incident for communications purposes. Bronze Commander was the specialist task or sector commander who had the role of implementing the tactics determined by the Silver Commander.
Following the report of shots being fired, this structure was put into place. At 2.24 p.m., Superintendent Pyke temporarily assumed the position of Silver Commander, although it was intended that he would later assume the role of negotiator, and that Superintendent Mechan would replace him as Silver Commander. Superintendent Street took the role of Silver Control. Gold Control was set up in the operations room at police headquarters under the command of Assistant Chief Constable Albon. Chief Inspector McArthur, as officer in charge of the Armed Containment Unit, would assume the role of Bronze Commander. At 2.31 p.m. Superintendent Pyke authorised the deployment of armed police officers. This command structure was communicated to everyone at 3.06 p.m.
The delay in setting up this structure was due to the fact that it was not possible to establish which senior officers were on duty or to contact them. In particular, Superintendent Mechan chose to drive to the incident in his private car, which did not have a radio installed, despite the fact that fully equipped police vehicles were available. This meant that he was out of communication for a period of 35 minutes, and was therefore not fully aware of the changes in the situation.
The Forward Control Point was not established, as it should have been, by either Superintendents Pyke or Mechan, although the firearms team had met at the New Inn public house and appeared to be treating the pub as the Forward Control Point.
In a conversation at 2.46 p.m. between Superintendent Street, Silver Control, and another officer, it was stated that negotiators should be contacted. There were difficulties in contacting them, as they did not have any means of emergency communication, and they did not arrive or play any useful role before the death of Mr Hay. Superintendent Pyke was not able to act as negotiator whilst he was still waiting for Superintendent Mechan to replace him as Silver Commander.
At 2.43 p.m. the helicopter crew reported that Mr Hay was waving and pointing a rifle in their direction, and they withdrew to a safe distance. They observed that he had two rifles in a stand position near his car. They could not keep him under constant surveillance. At 2.50 p.m. the operations room became aware of the earlier firearms incident at Wagland Farm.
At approximately 3.00 p.m., Mr Hay was seen loading items into his car outside the manor house. He was now wearing a bullet-proof vest. At 3.05 p.m. the helicopter observed that it was his mother driving the car away from Crabadon Manor. The helicopter also observed Mr Hay as he set up a Bren gun in the driveway of the house, although, it was noted, that the gun did not have a magazine attached to it. There appeared to be ammunition boxes positioned near the Bren gun and also black bin liners which it was considered could possibly contain explosives. Attempts were made to get information about Mr Hay from his mother for negotiation purposes. She was interviewed by a policeman, but no use was made of her knowledge of either her son’s mental state or the layout of the house, as by the time all the information was gathered the incident was over.
At 3.17 p.m. Superintendent Mechan radioed that he was “at X-ray” (i.e. the Forward Control point at the New Inn); he was in fact at Rolster Bridge, 2 miles from Crabadon Manor. Superintendent Pyke and the firearms team were at the New Inn. Chief Inspector McArthur briefed the firearms team and in particular reminded them of their personal liability under section 3 of the Criminal Law Act 1967. He also reminded the team about the possible benefits of trying to engage an armed suspect in conversation as part of the containment process. Presuming that Superintendent Mechan would arrive imminently, Superintendent Pyke left for Crabadon Manor in order to fulfil his negotiating role, but did not actually proceed to the manor itself, remaining at the nearby crossroads to await the completion of the armed containment. Superintendent Mechan was still not in proper communication at 3.56 p.m. when he made several calls from a private house, and thus was never in control of the situation. In fact Superintendent Mechan did not take any effective action as Silver Commander because his arrival to take command was overtaken by events.
At approximately 3.30 p.m. the pilot of the helicopter observed Mr Hay lying on the lawn in front of the house, and was actually of the opinion that he had shot himself, confusing a shadow around him for blood. No attempt was made to detain him at this time, although the officer operating a video camera in the helicopter subsequently observed at the inquest that, as at this point the man was seated on the ground, it would have been a very good opportunity to move in and physically detain him. Mr Hay then got up, and was seen to point a weapon at the helicopter, at which point it moved away. Mr Hay was also seen by the helicopter to run up and down the lawn and imitate an aeroplane.
The armed officers made their way to the house and placed themselves around the house. Individual officers decided where to position themselves. Once in position, officers realised that there were particular escape routes for Mr Hay which they sought to close off. At least four of the officers were placed in positions with poor cover. The aim was to disarm Mr Hay and to contain him in order to prevent him from escaping into the countryside and thereby becoming a danger to the public.
At 3.50 p.m. the Armed Containment Team was in place around the house. It appears that the team were unaware of the personal circumstances of Mr Hay and unaware who owned the property. They were readily identifiable as police with caps with ‘Police’ written on them. Superintendent Pyke was not at the manor itself and, due to the fact that events developed rapidly, did not arrive to commence any negotiations. When the firearms team arrived Mr Hay was still seen to be lying on the ground. Police officers were positioned fairly close to Mr Hay to prevent access to the building and to be closer to the Bren gun with a view to preventing access to it. Mr Hay jumped up and started shouting, swearing and waving the gun in his hand. A police dog was sent towards him to attempt to restrain him and disarm him. Mr Hay’s own dog distracted the attention of the police dog. One of the firearms team shouted “Armed Police. Stand still”. One of the team tried to talk to Mr Hay asking him to comply with their directions and repeatedly to put the gun down. Mr Hay did not respond to any of the communications. A number of verbal challenges were made by the police from the time Mr Hay got up to the time he was shot. Mr Hay repeatedly pointed at his forehead and shouted “Do it, go on, what are you waiting for?”
At 3.53 p.m., Chief Inspector McArthur perceived that his officers were in danger and ordered a second police dog to be sent towards Mr Hay. Mr Hay ran screaming and shouting towards the dog and fired three times at the dog with a hand gun and fatally injured the dog. Mr Hay then raised his weapon towards 2 police officers, and at that point three officers opened fire. Due to the fact that he was wearing body armour, one shot was aimed at the top of his chest near the throat. Mr Hay was killed instantaneously by that bullet which hit his forehead. The officer who fired the fatal shot was 12 to 15 metres away and used a self-loading rifle. There were other wounds which would not have been fatal by themselves. Armed containment, if it was completely achieved, was only achieved a few seconds before Mr Hay was shot. Medical evidence at the subsequent inquest concluded that no drugs were detected in Mr Hay’s body which might have influenced his behaviour, and the alcohol levels were unlikely to have had a noticeable effect on his behaviour. A firearms expert indicated that the fatal bullet hit the forehead because Mr Hay had started to fall forward due to the impact of one of the bullets which had struck his back and that all three shots were fired in a short period of time.
The police investigation into the killing of Mr Hay
On the day of the shooting the Police Complaints Authority (PCA) was asked by the Chief Constable of Devon and Cornwall “to investigate the incidents culminating in the death of Ian Fitzgerald Hay and all attendant circumstances”. The PCA appointed an investigating officer, Mr Hugo Pike, Assistant Chief Constable of Avon and Somerset, to undertake this task.
The report of the PCA written by Mr Pike dated March 1994 contained a number of criticisms of the procedure on that day. In particular, the report noted:
a. The failure to establish a “Forward Control Point”.
The failure to collect information about the individual concerned although “there was both the time and the means by which considerable pertinent information could have been collected”, and a failure to secure the prompt attendance of trained negotiators.
A failure to get a plan of the layout of the area, and the fact that there was no organised positioning of officers, who were allowed to position themselves, leaving four of them exposed. “I find it unacceptable that a senior officer in charge of a firearms operation should only be aware that his officers were exposed some hours later at a team debrief.”
“A level of confusion which should not exist in this type of police operation. … Regardless of the contribution to this confusion by occasional poor radio reception and the individual errors of operations room staff, the main reason rests with Mechan’s failure to take the initial basic step of ascertaining whether or not a Forward Control Point existed and its location. The situation was exacerbated by his failure to avail himself of radio communications with the consequence that he travelled to an incident which he knew he was to command completely unaware of developments and without any means of providing any command input”.
“I am satisfied that [McArthur] did not engage in adequate planning prior to the deployment of authorised firearms officers at Crabadon Manor, neither did he direct any other officer to do so and that this failure amounts to a neglect of duty and that there is sufficient evidence that he committed this offence (§ 178). … Indeed it could well be suggested that McArthur’s failure displayed a disregard for the safety of his men and even indirectly the suspect (§ 164).”
“The failure to call out divisional officers is an important issue as it has been suggested that a larger number of armed officers than was available at Middlemoor may have allowed for a more distant armed containment of Hay.”
The applicants submitted that the positioning of armed officers in such close proximity to Mr Hay was unnecessary and directly caused the confrontation which ultimately led to his death (§ 63). However the report concluded at paragraph 182:
“I am of the opinion that given the events at Crabadon Manor on 13 October 1993, the course of action taken by McArthur was the only available option. It was essential that <Mr Hay> be contained at the premises and the geography of the immediate vicinity meant that the officers conducting the containment must inevitably assume positions closer to <Mr Hay> than might otherwise be desirable. I also acknowledge that the position in respect of the limited availability of the helicopter lent an urgency which had to be acknowledged.
I have already expressed the view that McArthur’s failures amount to an offence against discipline and that there is sufficient available evidence to prove them. These are serious failures and whilst <Mr Hay’s> death cannot be attributed to them that does not lessen their degree of importance.”
Disciplinary proceedings
On 15 November 1993 Chief Inspector McArthur was served with papers under the Police Discipline Regulations making allegations that as the tactical firearms officer he failed to ensure that adequate planning was carried out prior to the deployment of authorised firearms officers involved in the incident.
On 25 March 1994, the full PCA report was presented to the Chief Constable of Devon and Cornwall Constabulary, which recommended that disciplinary proceedings were brought against both Chief Inspector McArthur and Superintendent Mechan for neglect of duty, although he did not recommend any criminal proceedings. Specifically, it was alleged that the Chief Inspector had:
“Failed to plan properly the armed containment of Crabadon Manor and in particular:-
a. Failed to take into account the local geography of the area;
Failed to consider the available knowledge in respect of Mr Hay with respect to its relevance to an armed containment;
Failed to liase properly with Silver Command.”
Following the inquest verdict on 12 December 1994, there was some correspondence between the Chief Constable and the PCA. In the view of the Chief Constable, there should not have been any disciplinary charges against either of the two officers concerned. On 28 December 1993 he stated the following:
“[G]iven the failures of Superintendent Mechan in this operation it is difficult to criticise Chief Inspector McArthur. This point becomes even more poignant when it is unlikely, in my view, that Superintendent Mechan will return from sick leave and face discipline for this neglect.”
On 4 January 1995 the PCA wrote back invoking its statutory powers to recommend that the charge of neglect be brought against Chief Inspector McArthur. The letter identified four areas of concern, all of which were explained in detail in the PCA report:
a want of initial planning and intelligence;
a failure to acquire the information necessary for containment of the deceased;
an unauthorised change of role during the operation; and
a failure to consult the deceased’s mother before deploying the firearms team.
On 1 February 1995, the first applicant wrote to the PCA asking that the family be represented at the disciplinary hearing. This application was refused by Mr Portlock, the Deputy Chief Constable of Devon and Cornwall, on the basis that they had not lodged a formal complaint. The first applicant therefore attempted to lodge a complaint to remedy this situation.
On 24 April 1995, some 5 weeks before the scheduled hearing, the Chief Constable accepted the advice of police doctors that there was a likelihood that Superintendent Mechan’s appearance before the disciplinary hearing would hasten his complete mental breakdown and permitted the Superintendent, who had been on sick leave since the shooting, to retire due to ill-health. According to the medical evidence, the Superintendent was suffering from a mental illness, and had been at the time of the incident. The disciplinary charges against him were therefore withdrawn.
On 9 May 1995, Mr Portlock, formally requested the PCA not to pursue the charges against his officers. That request was refused. On the following day, the Deputy Chief Constable refused to allow the first applicant to lodge a further complaint of police negligence.
In the light of the withdrawal of the charges against Superintendent Mechan, the Chief Constable amended the charges against Chief Inspector McArthur. At the disciplinary hearing on 30 May 1995, the presiding Chief Constable of Wiltshire, Mr Girven, granted the Chief Inspector’s application to dismiss the proceedings as an abuse of process, on the grounds that the late notice of the amended charges, combined with the delay in the disciplinary hearing (17 months after the incident), had prejudiced his defence. A press release from the DCC the next day described the proceedings as “unnecessary and wholly inappropriate given the lack of evidence to support the charge”.
The PCA and the applicants separately applied for judicial review of the decision of Mr Girven to dismiss the charges against Mr McArthur and the applicant sought review of two other matters, including the decision of the Chief Constable to allow Superintendent Mechan to retire. On 21 November 1995, Mr Justice Sedley held that the decision to allow the Superintendent to retire had not been properly taken, but that he would not interfere with it. He further held that Mr Girven had been wrong in law to dismiss the charges against Chief Inspector McArthur, as there had not been any prejudice arising out of the delays. He made an order of mandamus directing the Chief Constable to hear the charges against the Chief Inspector on their substantive merits.
The disciplinary proceedings against Chief Inspector McArthur were eventually heard in 1997, after a delay caused by the challenges to the inquest proceedings, and in April 1997 the Chief Inspector was cleared of neglect of duty.