ITEMID: 001-98193
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: THIND  v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The first applicant, Mr Dilbag Singh Thind, was born in 1965. The second applicant, Mr Balvinder Singh Thind, was born in 1956. The applicants, who are Indian nationals and brothers, both live in Grimma. They were represented before the Court by Mr H. Meyer-Mews, a lawyer practising in Bremen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 March 2003 the Leipzig District Court issued an arrest warrant against the applicants. It found that the applicants were suspected of having infiltrated Indian nationals into Germany or other States of Western Europe in exchange for money on several occasions. They were likely to abscond if not taken into detention, in particular as they risked being sentenced to a considerable term of imprisonment.
On 31 March 2003 the applicants were arrested and taken into pre-trial detention.
On 15 September 2003 the Leipzig Regional Court admitted the indictment dated 16 July 2003 and ordered the applicants’ continued detention. The applicants were notably charged with having infiltrated Indian nationals into Germany and Great Britain on fifty-two occasions, acting as members of a gang on nine of these occasions.
On 9 December 2003 the Leipzig Regional Court opened the trial against the applicants, who were represented by two officially appointed defence counsel each. It subsequently held hearings on average once per week.
On 8 February 2005 the Leipzig Regional Court issued a new detention order against the first applicant, taking into account that a number of charges against him had been dropped in the course of the main hearing. It confirmed that order on 30 March 2005 on the first applicant’s appeal. The first applicant was now charged, in particular, with having infiltrated or having attempted to infiltrate foreigners into Germany or other countries of Western Europe on a commercial basis on fifteen occasions, while acting as a member of a gang on seven of these occasions. The Regional Court found that the first applicant was strongly suspected of having committed these offences on account of the contents of telephone conversations intercepted on judicial order and on account of the testimonies of twenty witnesses heard until then in court. He was still likely to abscond if released, despite the fact that he was married to a German national, had two young children and had already been in detention pending trial for almost two years. He risked being imposed a severe prison sentence if convicted and was suspected of belonging to an organisation which was in a position to smuggle persons abroad. Therefore, milder measures, such as his release on bail, were not suitable to avert the danger of his absconding and his continued detention was still proportionate.
On 18 April 2005 the Dresden Court of Appeal, endorsing the reasons given by the Regional Court in its decisions, dismissed the first applicant’s appeal as ill-founded.
On 19 May 2005 the Dresden Court of Appeal, following the first applicant’s remonstrance, refused to amend its decision of 18 April 2005. It considered, in particular, that the first applicant’s continued detention was not disproportionate in the light of the case-law of the Federal Constitutional Court and the European Court of Human Rights on the subject-matter. The sentence he risked being imposed if convicted largely exceeded the length of his detention pending trial until then. The Court of Appeal conceded that the proceedings had already lasted for a considerable time. Disagreeing with the first applicant, it found, however, that the prosecution authorities and the Leipzig Regional Court had not delayed the proceedings. The proceedings were very complex, notably because the offences had to be proved by examining the results of numerous intercepted telephone conversations made in a foreign language. The defendants being Indian nationals, the participation of interpreters in the proceedings was necessary. Moreover, the defendants’ lawyers had lodged numerous motions in the sixty hearings of the case held until then, which had prolonged the proceedings. It had been sufficient for the Regional Court to hold one hearing per week, which as a rule lasted the whole day. The defendants’ lawyers had rejected the Regional Court’s proposal made in March 2005 both to prolong the duration of the weekly hearing and to hear the case on two days per week, arguing that they were unavailable.
On 9 May 2005 the first applicant lodged a complaint with the Federal Constitutional Court against the decision taken by the Dresden Court of Appeal on 18 April 2005 and applied for an interim injunction quashing that decision and releasing him from prison. He subsequently extended his constitutional complaint to comprise also the decision of the Court of Appeal dated 19 May 2005. He claimed that his continued detention pending trial was disproportionate and in breach of the Basic Law, construed in the light of Article 5 § 3 of the Convention. He argued that the proceedings had been unreasonably delayed by the Leipzig Regional Court and that the criminal courts wrongly upheld the detention order on the unfounded assumption that he would abscond if released.
On 2 June 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the first applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 724/05).
On 8 February 2005 the Leipzig Regional Court issued a new detention order also against the second applicant, which it upheld on 5 and 19 July 2005 following the second applicant’s request for judicial review and appeal respectively. The second applicant was now charged notably with having infiltrated or having attempted to infiltrate Indian nationals into Germany or other countries of Western Europe on a commercial basis on twelve occasions, acting as a member of a gang on seven of these occasions. As to the evidence in support of the strong suspicion that the second applicant committed these offences and as to the reasons why he risked absconding if released, despite the fact that he had a close relationship with his son living in Grimma, the Regional Court reasoned its order in similar terms as that against the first applicant issued the same day (see above).
On 2 August 2005 the Dresden Court of Appeal, endorsing the reasons given in the decisions of the Leipzig Regional Court dated 5 and 19 July 2005, dismissed the second applicant’s appeal in which the latter had complained about the excessive length of his detention pending trial and about the delays caused in the proceedings by the fact that hearings were held only once per week.
On 29 August 2005 the Dresden Court of Appeal, on the second applicant’s remonstrance, refused to amend its decision dated 2 August 2005. It took the view that its decision was not contrary to the case-law of the European Court of Human Rights on the reasonable length of detention pending trial referred to by the second applicant.
On 28 September 2005 the Dresden Court of Appeal dismissed as inadmissible the second applicant’s request to give him an opportunity for explanation following its decision and also rejected his further remonstrance.
On 1 October 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Dresden Court of Appeal of 29 August and 28 September 2005 and applied for an interim injunction ordering his release from prison. He argued that his continued detention pending trial was unconstitutional in view of the protracted length of the proceedings against him.
On 25 October 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the second applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 1659/05).
Between 9 December 2003 and 10 January 2006 included, the Leipzig Regional Court held 93 hearings (that is, on average one hearing per week), in the course of which approximately 60 witnesses and experts were heard.
In the hearing on 10 January 2006 the Leipzig Regional Court stated that the judges, the applicants’ defence counsel and the Public Prosecutor had discussed an agreement with a view to terminating the proceedings (Verfahrensabsprache). In a decision laid down in the minutes of the hearing, the court declared that it would sentence the first applicant to a maximum of five years and six months’ imprisonment and the second applicant to a maximum of five years’ imprisonment if the applicants made a comprehensive and credible confession concerning certain specified offences they had been charged with. Moreover, the court promised to suspend the sentences imposed and grant probation already when the applicants had served half of their sentence under Article 57 § 2 of the Criminal Code (see Relevant domestic law and practice below) if the information it had obtained to date was correct (in particular that the applicants did not have any previous convictions) and if the formal requirements were met. The applicants then confessed to the offences specified in the Regional Court’s decision.
On 17 January 2006 the Leipzig Regional Court pronounced its judgment. It convicted the first applicant of thirteen counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on eight occasions, and sentenced him to five years and six months’ imprisonment. It found the second applicant guilty of ten counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on seven occasions, and sentenced him to five years’ imprisonment.
The court found that the applicants, partly acting together with another brother of theirs living in India, had illegally infiltrated Indian nationals into Germany or other States of Western Europe, notably Great Britain, in exchange for money. It based its findings on the applicants’ confessions, which were confirmed by the transcripts of intercepted telephone conversations and the testimonies of nine witnesses. It took into consideration, as a mitigating factor, inter alia, that the applicants had been in detention pending trial for a long period of time, two years and almost ten months, and had been uncertain about the outcome of the proceedings for a very long period of time due to the long duration of the proceedings.
By a decision taken immediately after the pronouncement of the judgment in the hearing, the Leipzig Regional Court quashed the detention orders of 8 February 2005 against both applicants. It then instructed the applicants that they had the right to lodge an appeal on points of law against the judgment and that the agreement with a view to terminating the proceedings reached in the hearing did not bar them from lodging that appeal (so-called qualified instruction – qualifizierte Belehrung).
Following an interruption of the hearing, during which the applicants consulted their defence counsel, the applicants waived their right to lodge an appeal with the consent of their defence counsel. The prosecution then also waived its right to appeal. The judgment thereby having become final, the Regional Court suspended the remainder of the prison sentences imposed on the applicants and granted probation pursuant to Article 57 § 2 of the Criminal Code, having regard, inter alia, to the very long duration of the applicants’ detention pending trial.
The applicants subsequently lodged an appeal on points of law. They argued that the waiver of their right to appeal was invalid because it was based on an agreement with the court and because only that agreement had made possible their immediate release from prison.
On 24 August 2006 the Federal Court of Justice dismissed the applicants’ appeal on points of law as inadmissible. It found that the applicants had validly waived their right to lodge an appeal. Prior to the pronouncement of the Regional Court’s judgment there had been an agreement between that court, the prosecution and the defence aimed at terminating the proceedings. However, the agreement did not comprise a commitment that the defendants waive their right to file an appeal on points of law. According to the minutes, the defendants had been expressly informed by the Regional Court after the pronouncement of the judgment that the agreement reached did not prevent them from lodging an appeal on points of law against the judgment and had thus received the necessary qualified instruction. After a suspension of the hearing, which gave them sufficient time for consideration, they had declared to waive their right to appeal with the consent of their counsel. This waiver was irrevocable. Having regard to the criteria established in its case-law (it referred to the decision of its Grand Chamber of 3 March 2005, no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq., see Relevant domestic law and practice below), there were no exceptional grounds rendering the waiver void.
Under Article 57 § 2 of the Criminal Code, the courts may suspend the execution of the remainder of a prison sentence and grant probation already when half of the sentence has been served, in particular, if the convicted person is serving his first term of imprisonment and the latter does not exceed two years or if a comprehensive evaluation of the offence, the personality of the convicted person and his development during the execution of the sentence show that special circumstances exist.
In its leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements with a view to terminating criminal proceedings (no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq.). It considered such agreements, in which the criminal courts made a binding declaration on a maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he was charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions were met.
In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) had to be involved in reaching the agreement, the result of which had to be made public in the hearing and had to be included in the minutes. The veracity of the confession made by the defendant in accordance with the agreement had to be verified. The agreement was not allowed to concern the legal qualification of the acts the defendant had been charged with. The penalty proposed by the court still had to reflect the defendant’s guilt and the penalty which, according to the court, was to be expected without a confession could not be disproportionately severe so as to submit the defendant to undue pressure to confess. The court was only allowed to promise a maximum penalty (as opposed to a specified penalty) and could exceed that penalty only if relevant factual or legal aspects had been overlooked and if it had previously averted the defendant in the hearing of its intention to fix a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in the proceedings without being allowed to have recourse to such agreements.
The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange upon a waiver of the right to appeal. An agreement aimed at terminating the proceedings was not to prevent an effective control, by the appeals courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to instruct the defendant not only about his right to appeal, but in addition on the fact that he was free to lodge an appeal irrespective of the agreement reached (so-called qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void.


ITEMID: 001-24000
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KUZNETSOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Leonid Ivanovich Kuznetsov, is a Russian national, who was born in 1949 and lives in the village of Su-Psekh, Krasnodar Region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant lived and worked in Chukotka, a territory in the extreme North-East of Russia. In February 1991 the applicant fell victim to a work-related accident causing 60% disability. During the two years following the accident he received regular indemnity payments from his former employer, a private company “Zarya” (hereinafter referred to as “the company”).
In July 1993 the company stopped these payments. On 25 October 1993 the applicant lodged an action against the company, seeking recovery of regular payments and compensation of pecuniary damages in the total amount of RUR 58,477 and compensation of non-pecuniary damages in the amount of RUR 2,000,000. This action was filed with the Chaunskiy District Court of the Chukotka Region.
On 31 December 1996 the applicant applied to the court with a view to replace the defendant. He claimed that the company was de facto bankrupt, though formally it continued to exist. Referring to the social security legislation, the applicant claimed that the authorities should have accepted the obligation to pay the indemnity instead of the bankrupt company. On 4 February 1997 the Chaunskiy District Court accepted the applicant’s arguments to have the company replaced by the social security authorities as defendants. Since the regional social security authorities were located in the city of Anadyr, the court decided to transfer the jurisdiction to another court. The case was thus transmitted to the Anadyr Town Court of the Chukotka Region.
On 20 March 1997 the applicant requested the district prosecutor to initiate liquidation proceedings against the company.
On 29 April 1997 the Presidium of the Chukotka Regional Court quashed the decision of 4 February 1997 by way of supervisory review and remitted the case back to the Chaunskiy District Court. The Presidium emphasised that the company was not formally liquidated, and that thus the first instance court had had no grounds for replacing the company as a defendant.
In March, June and July 1997 the applicant asked the Prosecutor’s Office to initiate liquidation proceedings against the company, but to no avail.
In July 1997 the applicant complained to the prosecutor about the failure of the Chaunskiy District Court to deal with his case. His complaint was forwarded to the President of the Chaunskiy District Court. By a letter of 31 March 1998 the President informed the applicant that the delay could be explained in part by the backlog of cases in the District Court and the lack of staff. The President further noted that the company did not exist de facto, but that it was not formally liquidated.
On 1 April 1998 the applicant filed a new request with the district prosecutor’s office, seeking to initiate liquidation proceedings against the company. It appears that this time the case was brought before the court by the authorities and on 20 October 1998 the Commercial Court of the Chukotka Region declared the company bankrupt. On 21 May 1999 the company was formally liquidated.
On 19 May 1999 the applicant applied to the Chaunskiy District Court, requesting it to replace the company with the State social security service as a defendant. On 4 June 1999 the Chaunskiy District Court replaced the defendant. The case was transmitted to the Anadyr Town Court.
In 2000 the applicant filed with the General Prosecutor, the Supreme Court of the Russian Federation, and the Chukotka Regional Court a number of complaints with the view to speeding up the proceedings. On 25 July 2000 the applicant increased the amount of pecuniary damages claimed from the Social Security Fund to RUR 164,650.
On 21 September 2000 the Anadyr Town Court examined the case. It granted the applicant’s claim in part, awarding him RUR 8,319 in damages against the social security authorities.
The applicant appealed. On 21 December 2000 the Chukotka Regional Court overruled the first instance court and remitted the case to the Anadyr Town Court for a fresh examination.
On 9 January 2001 the applicant raised the amount of his claim to RUR 249,444. On 27 February 2001 the Anadyr Town Court adopted a judgment whereby it confirmed in essence the judgment of 21 September 2000. The applicant was awarded RUR 8,319. On 23 March 2001 the applicant filed an appeal against this judgment. On 26 June 2001 the first instance judgment was upheld by the Chukotka Regional Court.


ITEMID: 001-97636
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF A.D. AND O.D. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13+8;No violation of Art. 13;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 6. The first applicant, A.D., is a female British national who was born in 1966 and lives in Whitefield, Manchester. The second applicant, O.D., is the first applicant's son. He is a British national who was born in 1996 and currently resides with the first applicant.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 8 August 1996 O.D. was delivered by caesarian section at 36 weeks because of his failure to grow in the womb. He weighed 1.9 kg. He was not diagnosed with any particular condition. He was initially fed via feeding tube.
9. The first applicant was concerned about O.D.'s small size and his failure to pick up weight. On 24 October 1996 she asked her general practitioner to refer him to a paediatrician. She was referred to Dr S., the paediatrician who had seen O.D. after his birth. Following a consultation in November 1996 the first applicant was told that the situation would be reviewed on 2 January 1997. As O.D.'s weight and length had fallen below the third centile chart, tests were carried out on 16 January 1997.
10. On 21 January 1997 the consultant radiologist informed Dr S. that X-rays revealed evidence of three, possibly four, healing fractures to the right ribs. The first applicant and her partner were informed the same day.
11. On 23 January 1997 O.D. was admitted to hospital as a patient and a full skeletal survey was carried out, which confirmed four fractures. The local authority were informed.
12. The first applicant took legal advice and also undertook some research, herself noting that O.D. had eight of the ten indicators for the condition of Osteogenesis Imperfecta (brittle bone disease), including the genetic factor of her own joint laxity or double-jointedness. She states that she raised this possibility with Dr S. who dismissed it without giving any reasons.
13. On 24 January 1997 a report by Dr S. concluded that the injuries were sustained “non-accidentally” in view of the nature of the fractures and the lack of any other explanation for them. He noted, however, that O.D.'s parents had appeared very caring and concerned for his welfare at their three meetings.
14. On 30 January 1997 the local authority held a case conference and placed O.D. on the “At Risk Register”. At the meeting Dr S. mentioned that she had looked at O.D.'s bones to see if they appeared thin but considered that they were normal.
15. Ms M., the social worker assigned to the case, conducted six sessions with the family. When the first applicant raised the possibility of Osteogenesis Imperfecta with her, she was told that she was in denial over the injuries to her son. The first applicant and her partner were very distraught over O.D.'s feeding problems and injuries and by the accusations of child abuse.
16. The first applicant attended assessment meetings held at the Upland Centre, the purpose of which she was told was to assess the risk she and her partner posed to O.D. She and her partner fully co-operated and attended all meetings.
17. On 13 March 1997 O.D. was admitted to hospital following further weight loss and a nasogastric tube was inserted.
18. On 24 March 1997 the first applicant and her partner removed O.D. from the ward, against medical advice, as he had contracted a viral infection which caused vomiting and diarrhoea and was negating any advantages of feeding by tube. They took him to see a consultant paediatric gastroenterologist concerning his slow weight gain, but did not attend all appointments and cancelled a stomach biopsy as they felt he was well and gaining weight.
19. On 30 April 1997 the local authority received a report from Professor C., a professor of paediatric radiology, which confirmed the fractures to the ribs. She considered that the fractures had been inflicted on two separate occasions. She also concurred with Dr S. that “the rib fractures have occurred from squeezing” and that “rib fractures in children are extraordinarily rare except in non-accidental injury...”. She found that O.D.'s bone texture was normal and there was nothing to indicate any underlying bone disease. She stated that there was no other medical test that would help to identify anything further about the rib fractures. Finally, she noted that the ultrasound of O.D.'s head revealed a bright area in the brain cortex. A small bleed could not be excluded, which caused her some concern as to shaking, but on balance she thought the results were normal.
20. On 1 May 1997 the local authority applied to the County Court for an interim care order. At the same time a guardian ad litem was appointed on behalf of O.D., who was of the opinion that the family should stay together.
21. On 6 May 1997, at the statutory review meeting, it was noted that Dr S. had undertaken a test due to concerns about bone disease and that the result was used by Professor C. The local authority was informed that a police investigation was not considered appropriate as there was nothing to suggest that the injuries flowed from a criminal assault. It was hoped that the family would be placed in a protective unit where O.D. could be monitored by professionals. The first applicant and her partner were present at this meeting. The applicants disputed, however, that Dr S. had in fact carried out a test for Osteogenesis Imperfecta.
22. On 7 May 1997 the County Court granted an interim care order. It was proposed in court that the family relocate to the St John's Family Resource Centre in Bristol, some 150 miles away. The first applicant claimed that neither she nor her partner had been consulted or even warned about this possibility. They had to go directly to the Centre from the court room, leaving their own comfortable well-equipped home and their network of extended family and friends. The first applicant consented to the care order but submitted that she had no real choice, because if she had resisted the measure O.D. could have been placed in foster care straight away. She had been advised that if she did not oppose the assessment procedure, it would be less likely that they would be separated. While her solicitors had obtained an expert report by Dr P. suggesting that O.D. suffered from Osteogenesis Imperfecta, she had been advised not to rely on it in the proceedings because Dr P. had been discredited as a medical expert acceptable to the courts due to violations of professional ethics in the course of previous legal proceedings.
23. The first applicant stated that she was horrified by the conditions at the Centre, which was located in a crime-ridden, rough area of Bristol. The family had to live in one room with a small kitchenette and were not allowed to cook any meals after 7.00 p.m. The house was dirty and occupied by problem families (crime, drugs and alcohol). Initially they were only allowed to leave the Centre for two hours per day. The latter restriction was lifted on 4 June 1997 against the wishes of Ms M. and the local authority. During their stay, the first applicant and her partner had to claim benefits which they had not done previously. The family was not permitted to leave the Centre for two nights to attend the wedding of the first applicant's sister; they were only allowed to attend the actual ceremony and not the reception. According to the Government, however, the first applicant's evidence in the domestic care proceedings was at odds with this description: she stated on 15 July 1997 that the physical surroundings were better than they had feared and that the other residents were friendly and helpful. There had also been no restriction on the first applicant leaving the centre alone; the only requirement had been that if she left with O.D. they had to be accompanied by a member of staff. From 16 May she was allowed to take O.D. out unaccompanied for two hours a day, and after 4 June all restrictions were lifted. They also had overnight stays away from the hostel and a day long visit to Manchester.
24. The family remained at the Centre for twelve weeks. The first applicant was under the impression, as had been stated in court, that the assessment to be made was of the risk posed to O.D. by her and her partner. The keyworker at the Centre understood that a parenting assessment was to be carried out. When the letter of instruction was at last sent to the Centre, it asked, somewhat ambiguously, for their opinion on the standard of care provided to O.D. and the first applicant and her partner's ability to care for him.
25. The Centre's report compiled by Miss C.H. on 30 July 1997 stated that its aims were to assess the future risk posed to O.D. by his parents, to assess their handling and interaction with the child and to assess their parenting skills. The report noted that the couple presented as being very capable of caring for O.D. and that both appeared to be committed, with a willingness to accept the advice of professionals, although their level of anxiety had been high. Concerns remained, however, about O.D.'s feeding difficulties and limited weight gain, as he remained substantially below the third centile weight for a child of his age. In a further report on 2 August 1997, Miss C.H. confirmed that until there was clarity about the cause of the injuries the risk remained high.
26. While in Bristol O.D. had been seen by a consultant clinical geneticist who reported that Osteogenesis Imperfecta or some other collagen abnormality was no more than one possible explanation for O.D.'s medical history; in particular as it was rare to have this degree of growth retardation in the absence of multiple long fractures, other causes for the failure to thrive should be sought. He also commented that continuing emotional stress in the family should be seriously considered as a possible aggravating factor. He noted that further investigation might include a skin biopsy to assess collagen profiles but that it would be inappropriate to pursue these in Bristol. In any case, he indicated that the diagnostic value of the test had been previously shown to have a detection rate of only 87%.
27. On return to Manchester, after a twelve week stay in Bristol, the family had to live in a Family Assessment Centre for another week while the local authority applied to renew the interim care order.
28. The first applicant's solicitor instructed an expert radiologist, Dr L., to report on O.D.'s injuries, asking him specifically to comment on whether the injuries were more likely to have been caused by non-accidental means or a form of Osteogenesis Imperfecta. As an acknowledged expert in bone disease, Dr L. stated in the report that there was no evidence of abnormal bone morphology or density to suggest bone fragility. In the absence of abnormal bone fragility, he considered that non-accidental injury was the likely cause of the fractures. He was sceptical about taking a skin biopsy, considering the test to be equivocal. He also confirmed that the previous suggestion of a brain injury on the initial scan was unfounded as the scan merely showed reflective echoes.
29. At a statutory review on 4 August 1997, the local authority concluded that O.D. could not safely be placed with his parents and proposed to place him with foster carers, with daily parental contact, while a psychological assessment of the first applicant and her partner was undertaken and a risk assessment was carried out by the National Society for the Prevention of Cruelty to Children (NSPCC). The question of placing O.D. with a relative had been discussed with the maternal grandparents. Ms M. and another social worker paid them a visit on 7 July 1997. The matter was not pursued as it was noted that the maternal grandparents considered that not enough consideration had been given to Osteogenesis Imperfecta and that decisions were being taken by persons who did not know the parents. In a statement of evidence submitted on 6 August, the applicant's partner listed family members who would either stay with the applicants or have the applicants stay with them; he did not specify that any relative was prepared to look after O.D. by themselves.
30. The interim care proceedings began on 7 August 1997. At the hearing, Dr R., the consultant paediatrician who had overseen O.D.'s care at Bristol stated her opposition to the care plan; she considered that O.D. had a close relationship with his family and removal would cause emotional trauma equivalent to bereavement. The social worker supervisor also opposed the care plan, as O.D. had suffered no further injuries and she believed it to be highly likely to exacerbate his eating problems. While she gave evidence for the applicants, Dr R. had nonetheless stated in her report of 5 August 1997 that the rib fractures were unexplained and characteristic of non-accidental injury; that there was no definitive test for Osteogenesis Imperfecta; and that she felt it unlikely that O.D. had this condition, referring to the further opinion of an orthopaedic surgeon, Dr G, who had been unable to confirm a diagnosis of Osteogenesis Imperfecta.
31. The interim care order was granted. In a judgment handed down on 12 August 1997, the judge considered that the consultant paediatrician and supervisor seemed to deal with a much more permanent separation than was envisaged. He stated that it was unfortunate that proper communications had not existed permitting the risk assessment to be carried out at Bristol but that it still remained to be discovered how O.D. had sustained his injuries. With regard to the proposal to place O.D. outside the family, the judge noted that there had been no proper assessment of any other family member but considered that the local authority could not be blamed for this: "Clearly there had been discussions, considerable discussions and disagreement about the care plan. ... as things stand at the moment I am not satisfied that any family member would accept the sort of risk that I think at present exists."
32. He went on to say: “So far as the capability of the parents is concerned, this will probably be of little comfort to them but nevertheless ... I have no doubt that they are very capable, that they are splendid parents in every possible way except with regard to these two matters, this most important fact that the injury has still not been sorted out and there is also the possible problems with feeding.”
33. He concluded that he had to make an order to provide O.D. with the protection that he required.
34. O.D. was placed with local authority approved foster parents. The first applicant was allowed contact for a period of four hours a day for five days during the week.
35. The first applicant was concerned as to the care which O.D. was receiving in the foster home. New clothes which she had given him were not being used; she found a plastic pellet in his play pen; on one occasion he was crawling on the floor near to broken glass; and when the first applicant noticed a bruise on O.D.'s face, the foster mother showed no concern and it was the link worker who had to recommend that he saw a doctor. The Government stated that the foster parents, selected for expertise with feeding problems, reported to, and were visited by, the local authority regularly, who found their care to be satisfactory.
36. On 7 or 9 October 1997, O.D. was admitted to hospital due to feeding problems. The first applicant claimed that she was not informed and only found out on arrival for a contact session. She was not allowed to stay with him in hospital overnight. The Government stated that the first applicant had been aware in advance, due to a previous visit to a doctor, that O.D. might be admitted to hospital and that she was informed when this happened as soon as was possible. Her normal contact continued with him during his ten-day stay.
37. On 27 October the NSPCC informed the local authority that O.D. should be returned without delay to his parents.
38. On 31 October 1997 Dr Si., a consultant paediatrician instructed by the guardian ad litem, noted that the lack of further injury despite increased mobility was further evidence against Osteogenesis Imperfecta. He emphasised that the feeding and growth problem was not a child protection matter per se but that the impact of these problems on the parents needed to be taken into account.
39. On 12 November 1997, while still in foster care, O.D. fell and was taken to hospital. The radiologist diagnosed a possible fracture of the shinbone. The X-rays were analysed as showing the bones to be thin and osteopenic.
40. On 20 November 1997 the NSPCC submitted their risk assessment. They recommended that O.D. be returned quickly to his parents' care, with a short period of prior increased contact. The applicants submitted that the report was issued two months later than estimated; the Government submitted that the judge had in fact indicated that only the initial report should be available at the end of September.
41. On 8 December 1997 the local authority, at a statutory review meeting, agreed that O.D. should return home the same day.
42. On 19 January 1998 O.D. was examined by Dr B., a senior clinical research associate and honorary consultant paediatrician at the University of Cambridge. He reported in his final report of 25 March 1998 that there had been insufficient radiological evidence to substantiate the diagnosis of Osteogenesis Imperfecta or other bone disease in January 1997 but that the taking of additional X-ray views of particular bones might have provided further clarifications. Tests now indicated that O.D. had type IV Osteogenesis Imperfecta, with a significant growth retardant component, a condition which had been active from the time of the tests. The force necessary to fracture his ribs might well have fallen within the range of normal handling. He recommended regular follow-up in a specialist paediatric clinic.
43. The X-rays and draft report of Dr B. were submitted to Professor C., who in her report of 18 February 1998 found the special bone density tests inconclusive, although she noted that she was not an expert. She agreed that the X-rays now showed abnormalities but did not find this conclusive of Osteogenesis Imperfecta. She stated that in her experience if children with Osteogenesis Imperfecta had sustained rib fractures such as these from normal handling then they went on to sustain fractures in other areas; she was therefore surprised that O.D. had not had further fractures other than the one sustained in foster care if he in fact had had Osteogenesis Imperfecta.
44. Dr B., Professor C, Dr L. and Dr Si. held a meeting on 29 June 1998 and issued a joint report, in which they concurred that there was no evidence at the time of the first fractures to indicate Osteogenesis Imperfecta or the desirability of any further investigations and that O.D. had suffered from birth from Osteogenesis Imperfecta Type IV. They also agreed that in the absence of an account of trauma in a baby, rib fractures such as those observed would be highly suggestive of non-accidental injury inflicted by a forceful squeezing. However, while the latter three doctors considered that the degree of force required to cause these fractures fell outwith the normal handling of a small baby although not within the category of abusive handling, Dr B. took the view that it might not be completely outside the normal range of handling (for example, catching a child who was slipping). The cause of the serious growth retardation was not known.
45. In light of that report, the local authority made an urgent application for an abridged procedure to withdraw care proceedings, which were scheduled for further hearing in December 1998.
46. The interim care order was discharged in July 1998.
47. The first applicant submitted that the care proceedings had a devastating effect on her relationship with her partner and they have since separated. O.D., meanwhile, was suffering from sleeping and behavioural problems, was reluctant to leave the first applicant, would not play with other children and screamed and threw food at strangers.
48. In August 1998 the first applicant complained to the local authority which appointed an independent person, Mrs B., to investigate the complaint. After interviewing the key people involved, she found various defects in the handling of the case. She held that the local authority had failed to consider fostering O.D. with family members as required by statute, noted the confusion in communication with the Bristol Centre concerning the risk assessment and stated that once it had been decided to accept the NSPCC recommendation the rehabilitation should have taken days, not weeks; she also stated that there had been a steady deterioration in relations between the first applicant and the assigned social worker and that a more productive working relationship with the family might have been achieved by changing the caseworker as requested by the family. She did not uphold other specific complaints, finding, inter alia, that it had been necessary for the family to travel to the Bristol Centre on the same day as the hearing, that the local authority was justified in imposing restrictive travel arrangements on the family while at the Centre, that the stance of the judge and local authority when considering whether O.D. should be taken into care was understandable in light of the potential risks, that there was no reason to consider that the care received by O.D. from his foster carers was not entirely appropriate, that the parents were invited to review meetings and to give their views, and that the case involved the considered opinions of several eminent experts, who discounted bone disease and confirmed a diagnosis of non-accidental injury. She stated, inter alia, that with the weight of the medical evidence so firmly establishing non-accidental injury the local authority had no option but to apply for care proceedings. She made no recommendation for monetary compensation.
49. On 29 November 1999 the local authority's complaints officer wrote to the first applicant and recommended that she receive a full apology and that certain aspects of the local authority's systems be reviewed and revised.
50. On 7 December 1999, in light of the above negative findings, the Head of Children's Services sent the first applicant a letter of apology in respect of the criticised practices.
51. The first applicant instituted proceedings against the local authority on behalf of herself and O.D., claiming damages for negligence and personal injury.
52. On 9 September 2003 his Honour Judge Knopf held that the local authority owed no duty of care to a parent in the context of care proceedings based on allegations of abuse.
53. On 11 September 2003 the judge rejected the claims of O.D. on the ground that he had not been shown to have suffered any recognisable psychiatric damage, or alternatively, that any injury was transient and not compensatable by damages.
54. Both applicants were granted permission to appeal but the proceedings were stayed pending the outcome of D. v. East Berkshire Community Health NHS Trust and others [2005] AC 373 (see description of domestic proceedings in R.K. and A.K. v. the United Kingdom, 38000/05, judgment of 30 September 2008, §§ 23-26). These cases concluded in the House of Lords, which held that no duty was owed by medical or social work professionals to parents in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary.
55. After the hearing of the applicants' appeals on 3 and 4 November 2005, the Court of Appeal on 17 January 2006 dismissed the first applicant's appeal as at no stage was she owed a duty of care by the local authority. The court also rejected O.D.'s appeal on the ground that there was no evidence that he had suffered harm other than transient distress. In the alternative, the court held that any harm suffered by O.D. did not amount to a recognised psychiatric disorder and was therefore not of the kind giving rise to an action for damages (“non-justiciable harm”). The Human Rights Act 1998 and the European Convention on Human Rights were irrelevant as the case concerned events prior to the Act's implementation.
56. Leave to appeal to the House of Lords was refused.
57. Section 23 (6) of the Children Act 1989 provides as follows:
“Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—
(a) a person falling within subsection (4); or
(b) a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare.”
58. A person falling within subsection 4 is a parent of the child; a person who is not a parent of the child but who has parental responsibility for him; or a person in whose favour a residence order was made.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-69169
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: CATALDO v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Guido Antonio Cataldo, is an Italian national who was born in 1941 and lives in Benevento. He was represented before the Court by Mr S. Ferrara, a lawyer practising in Benevento.
The Government were represented by their Agents, in which capacity Mr U. Leanza was followed by Mr I.M. Braguglia, and by their co-Agents, in which capacity Mr V. Esposito was followed by Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 the Naples public prosecutor's office entered the applicant's name in the register of persons against whom criminal proceedings had been brought (registro degli indagati), on suspicion of forgery.
On 8 July 1994 the public prosecutor's office requested that the applicant and twenty-nine other accused be committed for trial. The application erroneously gave his name as Vito Antonio instead of Guido Antonio.
On 17 January 1995 the preliminary investigations judge listed the preliminary hearing for 30 March 1995.
On 3 February 1998 the District Court noted the mistake and sent the case file back to the preliminary investigations judge for a hearing on 20 April 1998, which was later adjourned to 27 May 1998.
On 27 May 1998 the preliminary investigations judge noted that the applicant had not been questioned and sent the file back to the public prosecutor's office.
On 15 July 1998 the prosecuting authorities questioned the applicant. The preliminary hearing was then set for 3 November 1998.
On 3 November 1998 the preliminary investigations judge ruled that he did not have jurisdiction ratione materiae and sent the file back to the public prosecutor's office.
The subsequent course of the proceedings is not known, since the file is untraceable.
On 18 June 2001 the Court informed the applicant of the entry into force, on 18 April 2001, of Law no. 89 of 24 March 2001 (hereafter “the Pinto Act”), which introduced into the Italian legal system a remedy against the excessive length of judicial proceedings.
In a letter of 5 July 2001 the applicant informed the Court that he had applied to the Rome Court of Appeal for compensation under the Pinto Act and asked the Court to suspend the examination of his application until the end of the related proceedings.
On 6 July 2001 the applicant did indeed submit a claim to the Rome Court of Appeal under the Pinto Act, complaining of the excessive length of the proceedings described above.
He asked it to hold that there had been a violation of Article 6 § 1 of the Convention and to order the Italian State to make good the pecuniary and non-pecuniary damage he had sustained and to pay him costs and expenses.
In particular, the applicant claimed 882,843.49 euros (EUR), made up of EUR 743,697.93 for loss of opportunity, EUR 103,291.38 for non-pecuniary damage, EUR 35,854.17 for the downgrading his employer had imposed on him and EUR 10,329.14 for costs and expenses.
By a decision of 15 October 2001, deposited with the registry on 6 November 2001, the Court of Appeal found that a reasonable time had been exceeded. It refused the application regarding compensation for pecuniary damage, describing the applicant's claims as “speculative”, but awarded him, on an equitable basis, EUR 7,230.40 in compensation for non-pecuniary damage and EUR 1,394.43 for costs and expenses, plus interest.
On 26 November 2001 the Court of Appeal's decision became enforceable.
On 3 December 2001 the applicant served the Court of Appeal's decision on the respondent authority.
In letters dated 14 February 2002 and 6 March 2002 the applicant requested payment of the sums due.
On 18 July 2002 he served the respondent authority with a notice to pay. As the money was not forthcoming, he summoned the authority to appear in court on 20 January 2003.
In a letter of 31 October 2003 the applicant asked the Court to resume its examination of his application. He explained that, in the end, he did not intend to appeal on points of law against the Court of Appeal's decision because he considered that he had very little prospect of success.
In a decision of 21 October 2003, deposited with the registry on 22 October 2003, the Rome judge responsible for supervising the execution of judgments ordered the respondent authority to pay the sums due.
On 10 December 2003 the applicant obtained payment of the amounts in question.
The relevant domestic law and practice are described in Scordino v. Italy ((dec.) no. 36813/97, ECHR 2003-IV).


ITEMID: 001-22838
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DENNIS AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants are
1. Lizette Dennis, a British citizen born in 1943 and resident in Cologne, Germany;
2. Margaret Lockwood-Croft, a British citizen born in 1940 and resident in Aldershot, England;
3. John Clarke, an Australian citizen born in 1936 and resident in Green Valley, Australia;
4. Jean Clarke, an Australian citizen also resident in Green Valley, Australia.
They are represented by Irwin Mitchell Solicitors, Sheffield.
The facts of the case, as submitted by the applicants, may be summarised as follows.
At about 01.46 hours on 20 August 1989, the dredger “Bowbelle” collided with the passenger launch “Marchioness” on the River Thames, London. Fifty-one people, including the first applicant’s son Howard Dennis, the second applicant’s son Shaun Lockwood-Croft and the third and fourth applicants’ son John Clarke, lost their lives. Some bodies were recovered from the wreck of the “Marchioness” while twenty-seven were recovered from the river. The last body was not found until 1 September 1989.
Due to the lapse of time in recovering some of the bodies from the river, the Coroner decided that the bodies recovered on or after 22 August were to be considered, due to the degree of decomposition, as unsuitable for visual identification. He gave express authority for the removal of hands from bodies (to enable fingerprints to be taken at the police laboratory) where this was considered necessary. He did not address the question of whether the removal of hands was necessary even if dental records or other means of identification were either available or in the course of being obtained. The police were left with the impression that the Coroner required fingerprints to be taken in every case and that if it was necessary to remove the hands in order for fingerprints to be taken, this should be done. After the police fingerprinting experts advised that it was necessary to remove the hands to obtain the fingerprints, the police proceeded on 24 and 25 August to remove the hands from the victims’ bodies on a blanket basis without any consideration as to whether identification purposes required the measure in each case. This meant that hands were removed from bodies notwithstanding the fact that some had already been positively identified by dental records and dental records for others were in the process of being obtained.
In respect of Howard Dennis, his body was found at about 10.45 a.m. on 23 August. A national insurance card and student card with his name were found on the body. At about 2.30 p.m., following police enquiries, his dentist provided details to the Coroner’s Office. At some time on 25 August, he was positively identified by his dental records. However the same day his hands were removed, possibly after the dental identification was made.
In respect of Shaun Lockwood-Croft, his body was found early on 23 August. A signet ring bearing the initials “SLC” was on the body. The second applicant delivered his dental records to the police the same morning. At about 2.30 p.m., following police enquiries, his dentist provided dental records to the Coroner’s Office. At some time on 25 August his hands were removed.
In respect of John Clarke, the family provided details of identifying tattoos and body jewellery on 20 August. His body was found early on 22 August and the tattoos noted. On the morning of 23 August, his body was positively identified. At some time on 24 August, his hands were removed. At 10 a.m. on 25 August the police were informed that his dental records had been received by the Australian High Commission.
No relatives of the victims were informed that there was to be a removal of hands. Many did not become aware that the bodies had had parts removed until during the inquiry proceedings. The relatives were also denied access to the bodies to say their last farewell.
A number of inquiries were held into the collision and its tragic consequences. Three reports from the Thames Safety Inquiry were published on 2 December 1999 and 19 February 2000. A report on the formal investigation issued shortly thereafter.
In the Thames Safety Inquiry Final Report dated 22 December 1999 and published in Parliament on 19 February 2000, Lord Justice Clark found that the hands of 25 of the 27 victims found in the river were removed for the purposes of obtaining fingerprints and it was not until two years later that the families discovered what had happened. He made primary findings of fact that were undisputed by those participating in the inquiry, namely, that the Coroner gave authorisation for the hands to be removed from any bodies where it was not possible to take good fingerprints without doing so and that decisions were taken to remove hands on a purely technical basis without addressing the question of whether the deceased could be identified without his or her fingerprints being taken. He did not consider that any further primary facts would emerge if further evidence was called, noted that changes to and a tightening up of procedures had occurred and therefore reached the conclusion that the public interest did not require a public inquiry into this aspect.
Meanwhile, on 14 February 2000, the Deputy Prime Minister nonetheless requested Lord Justice Clarke to conduct a further non-statutory inquiry concerning the identification of victims. This inquiry was conducted in November and December 2000. The report on the Public Inquiry into the Identification of Victims following Major Transport Accidents was published on 23 March 2001. The report, set out in two volumes, reached findings of fact and made recommendations as to desirable and appropriate practice.
Concerning the removal of the hands, Lord Justice Clark found that at the relevant time the hands ought not to have been removed for the purposes of identification unless, having regard to the absence of other sufficient means of identification, it was necessary to do so. The Coroner had failed to give proper consideration to the question in what circumstances the hands of particular deceased should be removed and had instead authorised, and in effect instructed, the police to remove the hands if it was necessary to obtain fingerprints, though in fact it had not been necessary to obtain fingerprints. He recommended, inter alia, that the methods used for establishing the identity of a deceased should, wherever possible, avoid any unnecessary invasive procedures or disfigurement or mutilation and that body parts should not be removed for purposes of identification except where necessary as a last resort.
As regarded the failure to inform the relatives of the removal of hands, he found that it was not the practice in 1989 to provide such information and he did not criticise the Coroner for failing to provide it. He observed that the current practice was different as an open and honest approach was now recognised to be right in principle and relatives were now informed as soon as possible.
As regarded the alleged refusal to allow the relatives to view the bodies, he found that the Coroner had not given instructions that relatives were not to view the bodies. It was however likely that the Coroners’ officers or police liaison officers, acting from the best of motives, namely to avoid distress to relatives, sought to dissuade them from viewing the body. It was possible that some officers used language suggesting that viewing was prohibited rather than ill-advised. He did not find that it would be fair to blame the Coroner in that respect having regard to the standards of 1989. He observed however that as matters were perceived today, a coroner ought to consider how requests to view the body should be dealt with and give appropriate directions since the body was in his possession. Though there would be a need for sensitive and careful handling of the relatives’ feelings and for appropriate counselling before viewing took place, in principle the request of a relative to view the body, if maintained after appropriate counselling, should be respected.
Under English law, there is no “property” in a body. Neither a corpse nor parts of a corpse are capable of being property protected by legal rights (R. v. Kelly [1999] QB 621). No cause of action lies in tort in relation to the mutilation of the body of a family member.


ITEMID: 001-100190
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GATT v. MALTA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Remainder inadmissible;Just satisfaction reserved
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1947 and lived in Senglea, Malta.
6. He is currently in detention.
7. The applicant was facing proceedings before the Magistrates’ Court, sitting as a court of criminal judicature, for drug trafficking.
8. On 13 August 2001 the applicant was granted bail under certain conditions, including a guarantee of approximately 23,300 euros (EUR). One of these conditions stipulated that the applicant could only leave his residence to accompany his son to and from school, and was therefore only authorised to go out, accompanied by his son, between 6 a.m. and 9 a.m. and between 3 p.m. and 6 p.m. On 14 August 2001 the applicant signed a declaration stating that he agreed to comply with the above-mentioned obligation and to pay the guarantee in the event that he breached any of the conditions. He further paid the sum of EUR 1,165 by way of deposit.
9. Following a complaint that the applicant had been seen in Valletta, on an unspecified date, between 6 p.m. and 8 p.m., the Criminal Court, by a decision of 6 June 2006, held that the applicant had breached one of his bail conditions, namely being home by the established curfew. The Criminal Court therefore revoked his bail, ordered his arrest and decreed that the EUR 1,165 deposit he had already paid as well as the EUR 23,300 guarantee were to be paid to the government.
10. As he was unable to pay the guarantee, proceedings were initiated by the Registrar of Courts under Article 585 of the Criminal Code (“the CC”) to convert the debt into imprisonment. As stipulated in Article 586 of the CC the length of the detention could not exceed more than one day per EUR 13 (see ‘Relevant domestic law’ below).
11. On 28 July 2006 the Criminal Court ordered the guaranteed sum to be converted into a period of detention at the rate of one day per EUR 11.50, namely two thousand days (more than five years and six months), and the applicant was placed in detention.
12. On 12 June 2007 the applicant instituted constitutional proceedings, claiming that Article 586 of the CC and the Criminal Court decision of 28 July 2006 constituted a breach of Article 3 of the Convention in that they provided for an excessive and disproportionate punishment. Unlike other similar provisions of the law, Article 586 did not apply a ceiling on the length of the imprisonment to which a debt could be converted and it therefore gave rise to a degrading punishment in the applicant’s case.
13. On 19 October 2007 the Civil Court (First Hall) dismissed the applicant’s complaint. It noted that the applicant did not complain under Articles 5 or 6 of the Convention that the conditions imposed – which he had freely accepted, knowing the consequences they could entail – had been excessive, but solely under Article 3 on the ground that the length of his penalty had been “excessive” and disproportionate. It held that the length of imprisonment had been clear as soon as the amount of the guarantee had been fixed; accordingly, after knowingly accepting these conditions the applicant could not now complain that the penalty was excessive, since it was linked to the amount of the guarantee. Furthermore, the Convention did not afford a right to call into question the length of a sentence imposed by a competent court and in no way had the penalty imposed on the applicant been shown to have reached the threshold required to fall within Article 3.
14. On 12 February 2008 the Constitutional Court rejected an appeal lodged by the applicant. It held, however, that the Civil Court had erred in considering his detention as falling within Article 5 § 1 (a), namely, detention following a conviction. His detention had its basis in Article 5 § 1 (b), namely, to secure the fulfilment of an obligation prescribed by law. It followed that, according to Strasbourg case-law, there should be a reasonable relationship of proportionality between the deprivation of liberty and the fulfilment of the obligation. In the present case the applicant had undertaken an obligation knowing the unambiguous and non-arbitrary consequences it entailed, according to a pre-established rate which remained valid up to the date of payment. The fact that no ceiling applied to the provision in question did not affect the proportionality between the obligation and the consequences it entailed. Absolving a person of such an obligation when it had not been fulfilled would render the notion of guarantees against detention futile. This reasoning applied to both Article 5 and Article 3 of the Convention. Indeed, the applicant had neither contested the proportionality of the amount specified in the guarantee imposed nor stated that it was beyond his means. It followed that it could not amount to inhuman or degrading treatment or punishment. Notwithstanding that elements of shocking disproportionality could raise an issue under Article 3 (see Léger v. France, no. 19324/02, 11 April 2006, and Price v. the United Kingdom, no. 33394/96, ECHR 2001-VII), this was not so in the present case.
15. Article 579 of the CC, Chapter 9 of the Laws of Malta, reads as follows:
“(1) If the person charged or accused fails to appear when ordered by the authority specified in the bail bond, or fails to observe any of the conditions imposed by the court in its decree granting bail, or absconds or leaves Malta, or while on bail commits any crime not being one of an involuntary nature, or interferes or attempts to interfere with witnesses or otherwise obstructs or attempts to obstruct the course of justice whether in relation to himself or any other person, the sum stated in the bail bond shall be forfeited to the government of Malta, and, moreover, a warrant of arrest shall be issued against him:
Provided that this Article shall not apply where the court considers that the infringement of the condition imposed in the decree granting bail is not of serious consequence.
(2) Any person who fails to observe any of the conditions imposed by the court in its decree granting bail shall be guilty of an offence and shall, on conviction, be liable to the punishment of a fine (multa) or to a term of imprisonment not exceeding six months, or to both such fine and imprisonment and the sum stated in the bail bond may be forfeited to the government of Malta.
(3) Notwithstanding the provisions of any law, any person charged with any offence as mentioned in sub-article (2) shall be arraigned in court under arrest, and it shall be lawful for the police to request in the same proceedings the revocation of bail and the rearrest of such person. The proceedings for an offence under sub-article (2) shall be taken by the police and shall be decided by the court with urgency.”
16. Article 585 of the CC, in so far as relevant, reads as follows:
“(1) For the recovery of the sum fixed in the bail bond in the case referred to in Article 579, the court before which the person charged or accused was bound to appear, shall, as the case may be, either issue and enforce a warrant of seizure or of arrest against the surety until payment is effected, or declare the deposit to be forfeited in favour of the government of Malta, or, in case of pledge, order the sale thereof.”
17. Article 586 of the CC, in so far as relevant, reads as follows:
“(1) Any person who is arrested for non-payment of the sum in which he bound himself, shall be detained for a period not exceeding one day for every eleven euros and sixty-five cents (11.65) of that sum, whether such person is the person charged or accused or the surety.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-77177
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF McKAY v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-3
JUDGES: Christos Rozakis;Egbert Myjer;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Sverre Erik Jebens
TEXT: 8. The applicant was born in 1983 and lives in Bangor, County Down, Northern Ireland.
9. On Saturday 6 January 2001 at 10 p.m., the applicant was arrested on suspicion of having carried out a robbery of a petrol station in Bangor. On Sunday 7 January 2001 he admitted being responsible for the robbery. He was charged at 12.37 p.m.
10. On Monday 8 January 2001 at 10 a.m., the applicant made his first appearance in the magistrates’ court, where he instructed his solicitors to make an application for release on bail. The police officer gave evidence to the court stating that the robbery was not connected with terrorism and that, subject to the proper conditions, he would have no objection to bail. The sitting resident magistrate refused the application, indicating that the offence was a scheduled offence and that he therefore did not have the power to order release (section 67(2) of the Terrorism Act 2000 and section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996).
11. On 8 January 2001 the applicant applied to the High Court for bail. On 9 January 2001 the High Court heard and granted his application.
12. On 12 April 2001 the applicant pleaded guilty in the Crown Court to an offence of robbery and was sentenced to two years’ detention in a young offenders’ institution, followed by a year of probation.
13. Meanwhile, on 9 January 2001, the applicant made an application for judicial review, seeking a declaration of incompatibility of the legislation cited above with Articles 5 and 14 of the Convention.
14. On 3 May 2002 the High Court rejected the applicant’s application. Mr Justice Kerr held:
“There is nothing in the text of Article 5 nor in the jurisprudence of ECtHR which requires that the court before which an arrested person must be brought should be the same court that has power to grant him bail. He must be brought promptly before a court or an officer authorised to exercise judicial power. He must also have the opportunity to apply for bail. It is not necessarily the case, however, that these two separate and distinct rights require to be vindicated at the same time or in the same forum. Provided that the arrested person is brought promptly before a court that has power to review the lawfulness of his detention and that he has the opportunity to apply without undue delay for release pending his trial, the requirements of Article 5 § 3 are met.
The applicant was brought before the magistrates’ court promptly – within 36 hours of his arrest. His appearance before the magistrate was automatic and did not depend on any initiative from the applicant. Moreover, the resident magistrate was empowered to review the lawfulness of the applicant’s detention ... Here the magistrate can review the legal basis on which the arrested person is detained. He must be satisfied that the arrest and continued detention are lawful. If he is not so satisfied, he must order the release of the person detained. The applicant in the present case was therefore entitled to a prompt automatic examination by a competent judicial officer of the legal basis of his arrest and continued detention. He was moreover entitled to – and did obtain – a prompt examination by a judge of his right to release on bail. ...”
15. The judge also rejected the arguments under Article 14 that accused members of the security forces were treated more favourably concerning bail than other accused persons and refused leave to appeal.
16. On 16 May 2002 the Divisional Court refused leave to appeal to the House of Lords, but certified as points of law of general public importance whether the legislation was compatible with the Convention and whether Article 5 required that the court before whom an accused person was brought pursuant to Article 5 § 3 should have the power to admit him to bail.
17. On 4 December 2002 leave to appeal was refused by the House of Lords.
18. Section 67(2) of the Terrorism Act 2000 (which came into force on 19 February 2001) is substantially the same as section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996 (in force at the time of the applicant’s appearance), and provides:
“Subject to subsections (6) and (7), a person to whom this section applies shall not be admitted to bail except –
(a) by a judge of the High Court or the Court of Appeal, or
(b) by the judge of the court of trial on adjourning the trial of a person charged with a scheduled offence.”
19. The sole jurisdiction of the High Court, Court of Appeal and trial judge to grant bail in the case of scheduled offences dates from 1973 and is based on the original provisions of the Northern Ireland (Emergency Provisions) Act 1973. The rationale derives from the Diplock Report (“Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland” (1972 Cmnd. 5185)), which concluded that resident magistrates who heard bail applications were particularly susceptible to threats and intimidation (at the relevant time one had been shot and the homes of two others bombed). The 2000 Act provides for the position to be annually reviewed by Parliament. Annual reports on the working of the legislation are laid before Parliament for this purpose.
20. In the 2002 report of the Independent Reviewer, Lord Carlile of Berriew QC recommended the return of bail applications to the magistrates’ court, noting that the requirement for all applications in scheduled offences to go before the High Court led in practice to some defendants spending additional days in custody and that a significant proportion of cases were ultimately not proceeded with, or defendants were acquitted or given non-custodial sentences. He recommended that the power be given to a small number of specially trained magistrates. However, in his 2004 report, he noted a continuing danger from sophisticated terrorist crime and numerous serious criminal offences with a strong terrorist link, with syndicated crime having a paramilitary connection increasing and significant levels of intimidation remaining. In considering whether or not to give resident magistrates the power to deal with bail applications, he did not repeat his earlier recommendation, observing that the security assessment was that there would be a significant threat of intimidation and violence towards them and those close to them. He did, however, agree that bail hearings should be available at the weekends and this change was brought into force immediately.
21. Robbery, in so far as it involves any explosive, firearm, imitation firearm or weapon of offence, is specified in paragraph 10 (b) of schedule 9 to the Terrorism Act 2000 as a scheduled offence.
22. This was set out in the Rules of the Supreme Court (Northern Ireland) Order 79, supplemented by Practice Direction 1976 no. 1. This provided for the High Court to sit every day except Saturdays and Sundays for the purpose, inter alia, of hearing bail applications. The Practice Direction instituted a deadline for papers to be lodged by 11 a.m. on the day before bail applications were heard. From October 2000, the deadline was moved to noon and the office adopted the practice of accepting faxed applications. A bail judge would also consider admitting a late application in a genuinely exceptional case.
23. As from 31 January 2004, the High Court also sat on Saturdays to hear bail applications.
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