ITEMID: 001-69614
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SAID v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;No separate issue under Art. 2;Pecuniary damage - claim dismissed
TEXT: 8. The applicant was born in 1967 and is currently staying in the Netherlands.
9. On 8 May 2001 the applicant arrived in the Netherlands, where on 21 May 2001 he applied for asylum (verblijfsvergunning asiel voor bepaalde tijd) at the asylum application centre (aanmeldcentrum) at Schiphol. A first interview with an official of the Immigration and Naturalisation Department of the Ministry of Justice took place that same day, in order to establish the applicant's identity, nationality and travel route. The next day he was interviewed regarding the reasons for his request for asylum. The applicant submitted the following.
10. After completing his eighteen months' military service on 1 December 1995, the applicant was again called up during a general mobilisation in April 1998. He served as a soldier in an anti-tank unit and fought in the war against Ethiopia.
11. Although the war ended on 13 June 2000, demobilisation did not commence until considerably later because the Eritrean authorities feared further military incursions by the Ethiopians. In August 2000 a meeting was held with the applicant's battalion, consisting of between 5,000 and 7,000 men, in order to evaluate its performance in the war. According to the applicant, it was customary for such meetings to be held, and they allowed the higher army echelons to cover up their mistakes by putting the blame for an unsuccessful campaign on the soldiers. During this meeting the commanders said that the soldiers had not fought well. The applicant spoke up and said that this was because the commanders had insisted that hungry, thirsty and tired soldiers should continue fighting at the front, which had resulted in casualties. He said that his unit should have been replaced or strengthened. Other soldiers present at the meeting also voiced criticism, saying, for example, that there had not been enough weapons. When the applicant had spoken out, the other soldiers had vociferously supported him and an argument had ensued.
12. For some time after the meeting, the applicant had the feeling that the army authorities were keeping an eye on him; for example, he thought he was being followed whenever he visited other units, and he was denied permission to go into town. On 5 December 2000, by which time he thought everything had been forgotten, he was summoned to the battalion's headquarters. There, he was informed that he had incited the soldiers. He was made to hand over his weapons and was detained in an underground cell for almost five months. He was neither interviewed, nor charged, nor brought before a military tribunal.
13. On 20 April 2001 he was put into a jeep, with a driver and a guard who were armed. He was neither handcuffed nor bound. During the drive, they happened upon a military vehicle that had had an accident. Both the driver and the guard got out of the car to see if they could lend assistance. The applicant, left alone, seized the opportunity and escaped through the back of the car.
14. The applicant made his way unhindered to Sudan, avoiding official border posts. An acquaintance of his in Khartoum brought him into contact with a travel agent, who arranged for a passport and air tickets. Accompanied by the travel agent, the applicant flew to Belgium via Syria and another, unspecified European country. From Brussels they took a train to Breda in the Netherlands. There, the travel agent told the applicant they had reached their destination. He asked him to hand back the passport and to report to a police station.
15. On 23 May 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie), applying an accelerated procedure, rejected the applicant's request for asylum. His failure to submit any document capable of establishing his identity, nationality or travel itinerary was held to affect the plausibility of his statements. Moreover, the Deputy Minister considered that the applicant's account of his alleged escape lacked credibility: it was hard to believe that someone who had been kept in detention for four months should have been transported unrestrained and been able to get away without being stopped by his guards, both of whom were alleged to have left him alone in the back of an open jeep in order to look at a traffic accident. The applicant was further held not to have substantiated his alleged detention. The comments he had allegedly made at the meeting in August 2000 were not of such a confrontational nature that he had well-founded reasons to fear persecution on that account, the more so bearing in mind that his comments did not particularly deviate from the opinion of the superiors to whom he claimed to have addressed them. Moreover, the applicant himself had stated that he was not the only soldier to have voiced criticism, yet neither had it been alleged, nor had it appeared, that any of those other soldiers had experienced problems as a result of their comments. The applicant had also not explained why he had not been arrested until four months later and had been left undisturbed in the meantime.
16. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam, and also applied to the President of that court for a provisional measure staying his expulsion. Pending the outcome of these proceedings, the applicant submitted a written statement by a certain Mr Khalifa, to the effect that Mr Khalifa's son had been executed in Eritrea in October 2000 after he had been staying with his mother for three months without having obtained prior permission from his army commanders. He also submitted an identity card, a military identity card, a driving licence and a marriage certificate. On 18 June 2001 the President of the Regional Court rejected the application for a provisional measure and, finding that further investigation could not reasonably contribute to the clarification of the case, also dismissed the appeal. The President considered that the applicant's alleged desertion and his resulting fear of disproportionate punishment had not been established in a sufficiently plausible manner. It was unlikely that the army should still have been mobilised at the time of the applicant's escape in April 2001, given that the war had ended in June 2000 and that the army, by the applicant's own account, had evaluated its performance in the war at a meeting in August 2000. The applicant's claim that he stood accused of incitement was based on pure supposition. In view of the ease with which the applicant had allegedly managed to escape, the President further found it unlikely that the (army) authorities wished to harm him. Thus, finding the applicant's account neither credible nor plausible, the President deemed it unnecessary to hear Mr Khalifa as a witness.
17. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), arguing, inter alia, that further investigation of the case, and in particular of the question whether the Eritrean army had been demobilised at the time of his desertion, was called for and feasible. If it turned out that the army had still been mobilised in April 2001, the reasoning adopted by the President of the Regional Court as to the lack of credibility and plausibility of the applicant's account would no longer stand up. The applicant also applied for a provisional measure allowing him to await the outcome of his further appeal in the Netherlands. He withdrew this application on 6 July 2001 in view of the relevant case-law of the Administrative Jurisdiction Division.
18. On 16 July 2001 the Administrative Jurisdiction Division dismissed the further appeal. It held that the applicant's appeal to the Regional Court had not been dismissed for reasons relating solely to the mobilisation, but also for reasons relating to the applicant's account of his arrest and escape. Given the conclusions reached by the President of the Regional Court to the effect that the Deputy Minister had not been wrong in describing the applicant's account as not credible, he (the President) had been entitled to decide not to hear evidence from Mr Khalifa as a witness. The fact that it was not in dispute that the applicant had served in the army did not affect this ruling.
19. Under the terms of section 29 of the Aliens Act 2000 (Vreemdelingenwet 2000), in force at the relevant time, an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
(a) he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951; or
(b) he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
20. To help in the assessment of asylum applications and the establishment of whether it is safe to return unsuccessful asylum-seekers, the Minister for Foreign Affairs regularly publishes official country reports (ambtsberichten) on the situation in asylum-seekers' countries of origin. In drawing up these reports, the Minister uses published sources and reports by non-governmental organisations as well as reports by Netherlands diplomatic missions.
21. The decision of 23 May 2001 rejecting the applicant's request for asylum was based on information contained in the country report of 20 October 2000. That report described Eritrea's conflict with Ethiopia and the hostilities that arose from it. The first series of hostilities ended in June 1998. Fierce fighting broke out again in February 1999, and there was small-scale fighting in September and October 1999. Full-scale war broke out again on 12 May 2000. On 18 June 2000 the two countries signed an agreement which has ended hostilities for the time being. Since then, the security situation has been good but the humanitarian situation has been worrying.
22. The country report made clear that merely coming from Eritrea does not constitute legal grounds for being admitted to the Netherlands. An asylum-seeker has to show convincingly that his or her personal circumstances – viewed objectively – justify a fear of persecution as defined in refugee law or constitute grounds for the issuing of a residence permit for the purposes of asylum because he or she would be subjected to treatment prohibited by Article 3 of the Convention if returned to the country of origin.
23. The country report of 1 March 2002 largely confirmed the findings of the previous report, although it also stated that deserters belonged to the categories of persons who, from a human rights point of view, ran a greater risk than others of encountering adverse treatment. With regard to penalties for desertion, it stated that the maximum penalty for desertion during general mobilisation was life imprisonment or, in extreme cases, death. According to the country report, these penalties and the question whether they applied in time of war or in peacetime were, however, largely theoretical. In practice, deserters were not tried in court, not even a military court. They were sentenced by their superiors and put to work in mining or road building for periods varying from six months to one year, until a new batch of recruits received basic training. Those sentenced were then sent to join the new batch and, subsequently, into active service. There were reports that in May/June 2000, during the war with Ethiopia, deserters who had been caught in the act were executed.
24. The most recent country report, that of 28 February 2005, contained the same information as the aforementioned report as far as penalties for desertion were concerned. It added that it seemed likely that the severity of the punishment imposed on deserters depended on the specific circumstances, including whether the desertion took place in time of war or in peacetime, whether the authorities were aware of the desertion at the time, and the particular circumstances of the individual concerned.
25. The same report further stated that there had been indications of ill-treatment of deserters by (military) police and security forces, and of disciplinary punishments, such as extended exposure to high temperatures or the binding of hands, being meted out to deserters in the army and resulting in permanent injury in some cases.
26. Given that there was a system of registration for conscripts, it was assumed that deserters were also registered and therefore known to the authorities.
27. In support of his application, the applicant provided the Court with information relating to the demobilisation of the army and the treatment of deserters.
28. According to a report published on 25 August 2001 in the weekly news magazine The Economist, the Eritrean army was at that time yet to be demobilised.
29. A letter to the applicant's lawyer dated 27 May 2002 from the Horn of Africa specialist of the Netherlands branch of Amnesty International stated that it was usual for the Eritrean army to get together after an offensive and to conduct an evaluation of its performance. It was also not unusual for a considerable time to pass between openly expressed criticism and arrest, or for deserters to be punished by their superiors without trial. Demobilisation of the Eritrean army had commenced in May 2002.
30. The applicant also submitted written statements by two Eritrean nationals currently living in exile in Germany and the United Kingdom respectively. The first statement, dated 6 March 2002, related how a relative of the author had been executed in April 1999 following this relative's voluntary return to the army after attending his brother's funeral without permission from his commanders. According to the second statement, made on 11 March 2002 by one of the founders and senior members of the Eritrean People's Liberation Front and former governor of a provincial capital, conscripts and soldiers who left the army were “hunted down and killed”.
31. In its Annual Report 2003, covering events from January to December 2002, Amnesty International noted with regard to Eritrea, inter alia:
“The penalty for evading conscription or protesting against military service is three years' imprisonment, but in practice those caught are tortured and arbitrarily detained for several months with hard labour, before being forced back into the army. Methods of torture reported included being left for many hours in the hot sun, bound hand and foot, in some cases resulting in permanent injury.”
32. An Amnesty International press release of 11 August 2003 expressed that organisation's concern about reported plans by the Libyan authorities forcibly to return seven Eritreans to Eritrea. These men had deserted from the Eritrean army at different times during 2002 and fled from Eritrea to Sudan and then to Libya, hoping to reach a country of asylum in Europe. The press release stated that hundreds of Eritreans had fled the country in the past two years, to Sudan initially, after deserting from national service or to escape conscription. Prisoners held in military detention also included a number of persons who had expressed opinions critical of the government or the military authorities. The press release contained the following passage:
“[I]f these seven Eritrean detainees are forcibly returned to Eritrea, they are at high risk of being arrested on arrival, and detained incommunicado and in secret without charge or trial for an indefinite period. They could face torture – which is routinely used by the military in Eritrea – and at least two of them who had been previously detained in Eritrea for political reasons could face extrajudicial execution.”
33. Amnesty International's Report 2004, covering events from January to December 2003, stated:
“Torture continued to be used ... as a standard military punishment. Army deserters ... were tortured in military custody. They were beaten, tied hand and foot in painful positions and left in the sun for lengthy periods ('the helicopter' torture method), and suspended by ropes from the ceiling.”
Amnesty International's Report 2005, covering events from January to December 2004, depicted an identical situation.
34. On 19 May 2004 Amnesty International published a report entitled “Eritrea: 'You Have No Right to Ask' – Government Resists Scrutiny on Human Rights”. It described, inter alia, the forcible deportation back to Eritrea of some 220 Eritreans who had landed on the island of Malta in 2002, mainly as a result of shipwrecks or sea rescues, by the Maltese authorities in September and October of that year. According to the report, the deportees
“... were all immediately detained on arrival in Asmara and sent to the nearby Adi Abeto military detention centre. ... As Amnesty International learned later, women, children and those over the conscription age limit of 40 years were released after some weeks in Adi Abeto Prison but the rest of the Malta deportees – mostly army deserters – were kept in incommunicado detention and tortured.”
35. On 28 February 2005 the United States Department of State released the 2004 Country Report on Human Rights Practices in Eritrea. It stated, inter alia:
“The Government continued to authorise the use of deadly force against anyone resisting or attempting to flee during military searches for deserters ...
During the year, police severely mistreated and beat army deserters ... Security forces detained deserters ... and subjected them to various disciplinary actions that included prolonged sun exposure in temperatures of up to 113 degrees Fahrenheit or the binding of the hands, elbows and feet for extended periods. ...
The Government deployed military police throughout the country using roadblocks, street sweeps, and house-to-house searches to find deserters ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-107128
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SOLOMON v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Ms Ana Solomon, is a Romanian national who was born in 1965 and lives in Empoli, Italy. She was represented before the Court by Ms Sofia Covaci, a lawyer practising in Băicoi. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 16 January 1999 the applicant married B.A. and on 7 December the same year they had a son, B.C.
4. On 15 August 2000 the applicant left for Italy to try to find work in order to raise money to help her husband pay off the debt he had allegedly accumulated as a result of several unsuccessful business ventures.
5. The applicant did not go back to Romania again until July 2004, after she had obtained an Italian residence permit.
6. On 24 April 2001, when the applicant was already living in Italy, her husband brought divorce and custody proceedings against her.
7. By a judgment of 25 July 2001, the Ploieşti District Court allowed the applicant’s husband’s action for divorce and awarded sole custody of the child to him. Relying, inter alia, on the testimony of the witnesses in support of the applicant’s husband, the social investigation carried out at the minor’s domicile by the Social Services attached to the Ploieşti Local Council, and the applicant’s apparent lack of interest in the proceedings, the court established that as a result of the disagreements between the parties the applicant had left the family home and made no attempt to return or to reconcile with her husband. The parties’ relationship had been seriously damaged and the marriage could not continue as a result of the applicant’s guilt. From the moment of her departure the minor had been left in the sole care of the father and the applicant had inquired about the child’s well-being only over the phone. The father was able to offer the minor appropriate material and living conditions for his development and the child had developed a strong emotional bond with his father.
8. On an unspecified date in 2004, following her visit to Romania, the applicant lodged an appeal against the judgment of 25 July 2001. She argued that she had been unaware of the divorce proceedings brought by her husband against her and that the judgment of 25 July 2001 of the Ploieşti District Court had never been communicated to her.
9. By a judgment of 18 November 2004, the Ploieşti Court of Appeal allowed the applicant’s appeal, quashed the judgment of 25 July 2001 and decided to re-examine the merits of the case. It held that the applicant had been summoned for the divorce proceedings at her home address in Romania, which the husband had provided as the correspondence address for her, even though he had been aware at the time that the applicant was living in Italy and he had known her exact address.
10. On 21 December 2004, as a result of domestic legislation amending the rules on civil procedure, the Ploieşti Court of Appeal declined jurisdiction in respect of re-examining the merits of the applicant’s case, in favour of the Prahova County Court.
11. On 26 January 2005 the divorce and custody proceedings were resumed before the Prahova County Court.
12. On 9 February 2005 the applicant brought a separate set of divorce and custody proceedings against B.A. before the Ploieşti District Court. She asked the court to name her husband as the guilty party in their divorce and to grant the said divorce to her, to allow her to reclaim her maiden name, to grant her custody of the child, and to order B.A. to pay her maintenance. Alternatively, if she was not granted custody of the child, she requested to be granted visiting rights for the first and third weekend of every month, for a week during each of the child’s school holidays and for a month during her own leave from work. Finally, she asked the court to allow the child to travel abroad. The applicant argued that her husband had accumulated a debt of 6,000 euros (EUR) and that, as he had been banned from entering the Schengen area, she had been the only family member able to travel to Italy to seek employment to raise the necessary money to pay the debt. She submitted that the money she had saved in Italy had enabled her to cover her husband’s debt, as well as to save an additional amount of EUR 2,500 owed in connection with an alleged accident that her husband had caused. Lastly, the applicant declared that before leaving Romania she had hired two women to take care of their son.
13. At a hearing on 17 February 2005 before the Prahova County Court the applicant requested leave from the court to be allowed to submit documentary and testimonial evidence. She also asked the court to order both that her husband be heard and that a social investigation be carried out by the Italian authorities at her home in Italy to prove her ability to provide the material and living conditions required for her son’s future development.
14. By an interim judgment (încheiere) delivered on the same day, the Prahova County Court allowed the applicant’s request in part. It adjourned the question of the social investigation to be carried out at the applicant’s home in Italy and ordered her to submit proof, in particular an identity card, that her domicile was in Italy.
15. On 21 April 2005 the two sets of divorce and custody proceedings brought by the applicants against each other were joined before the Prahova County Court.
16. At the hearing of 26 May 2005, the applicant reiterated her request that a social investigation be carried out at her home in Italy via international legal assistance instruments. The court heard the testimony of the two witnesses allowed for the applicant, S.G and S.T., and those of the two witnesses allowed for her husband, I.A. and B.N. The applicant submitted evidence that her own requests to the Italian authorities to carry out a social investigation at her home had been refused in the absence of a court order.
17. By an interim judgment delivered on the same day, the Prahova County Court rejected the applicant’s request for a social investigation as irrelevant to the proceedings at issue and allowed the applicant to submit proof of income, employment and information on her living conditions.
18. The Government informed the Court that at the hearing of 23 June 2005 the County Court had granted the applicant’s request for additional questions to be addressed to her husband. At the same time, the applicant had expressly stated that she did not wish to request that any additional evidence be attached to the file.
19. In her turn, the applicant alleged that at the last hearing before the court her husband had attached to the file, inter alia, a written statement by G.E., the child’s kindergarten teacher (educatoare), describing the child’s development and his desire to live with his father. However, the applicant had not had the opportunity to ask G.E. direct questions before the court.
20. Neither of the parties provided the Court with a copy of the interim judgment delivered by the County Court on 23 June 2005.
21. The Prahova County Court adjourned the delivery of its judgment to 30 June 2005 in order to allow the parties to submit written comments.
22. By the judgment of 30 June 2005 the Prahova County Court granted the parties’ divorce, and held that both spouses were equally responsible for the divorce. The court found that regardless of the reasons which had prompted the applicant to leave Romania, it was clear that the applicant had extended her stay in Italy until she was finally awarded a residence permit. Consequently, the court concluded that the applicant no longer wanted to return to Romania because she had prospects of better living conditions in Italy and the lengthy separation from her family, and in particular her son, did not appear to affect her. Moreover, according to the witness statement of I.A., in 2002 the applicant had prevented her husband and her son from travelling to visit her in Italy on the ground that she had a new family. The court considered that the applicant’s husband was equally responsible for the divorce because he had allowed his wife to leave and had not tried to persuade her to return home even though their son was of a very young age and he needed his mother’s care.
23. The Prahova County Court also awarded full custody of the child to the father. The court held that:
“it was in the minor’s best interest, an interest influenced by a series of factors, such as the child’s young age, his sex, the opportunities offered by the father for his growth and education, the moral standing (conduita morală) of each of the parents, the emotional attachment shown by the father towards the child and by the child towards his father, and other similar factors.”
24. The Prahova County Court further cited I.A.’s testimony that the child had been looked after by his father since 2000 and that during a phone conversation I.A. had overheard between the applicant and her son, the child had refused to talk to her on the ground that he did not know her. Moreover, according to B.N.’s testimony the applicant had asked her husband over the phone to travel to Italy alone without their son because she did not want to jeopardise her job by having them both there at the same time. Further, according to the statement of B.N. the child had been waking up at night frightened at the prospect of leaving his father. In this context the court held that the applicant was a stranger to the child and she could not be considered as his mother on account of the fact that she had left him when he was eight months old. Since then she had had contact with him only over the phone and had not seen him again until 2004. The child had had an emotional shock when the applicant had been introduced to him as his mother. Furthermore, the court took into account G.E.’s written statement attached to the file, according to which the child was well developed for his age. According to that statement, the child had publicly expressed in his class at the kindergarten his unwillingness to leave his father and his desire to live with him and his stepmother. The Prahova County Court also held, according to the social investigation carried out at the father’s home, that the father had been taking care of the child since the latter was eight months old and the child was well cared for. The social investigation also showed that the child was well developed for his age, that he was attached to his father and stepmother and that the applicant inquired about him only twice a year.
25. The court rejected the statements made by the two witnesses on behalf of the applicant as being indirect and subjective, given that they were members of the applicant’s family.
26. The court, however, allowed in part the applicant’s request for visiting rights and held that she could visit her son the first and third weekend of each month, on Saturday and Sunday from 10 a.m. to 2 p.m., at her former husband’s home. It dismissed the remainder of the applicant’s request concerning visiting rights on the ground that the child considered her a stranger and that to force the child to spend more time with a person he was afraid of might cause him to suffer psychological trauma which would affect his future development. Moreover, the child was about to start school and it would be stressful for him and against his best interests to be forced to follow the busy schedule proposed by the applicant.
27. Finally, the court dismissed the applicant’s request to allow the child to travel to Italy with her on account of his young age, the applicant’s lack of interest in her son and the risk of her not allowing him to return home.
28. On 11 August 2005 the applicant lodged an appeal (recurs) against the judgment of 30 June 2005. She requested the Court of Appeal to quash the judgment of the Prahova County Court and to refer the case back to that court for the obtaining of additional evidence (administrată), in particular:
a) a social investigation at her home in Italy that would allow the domestic courts to assess her economic and social suitability for bringing up her son. The applicant alleged that by taking into account only the social investigation carried out at her husband’s home when awarding custody of her son, the national courts had not compared the conditions offered by both the mother and the father of the child and could therefore not establish correctly what was in the best interests of the child. She also argued that the social investigation that had been performed at her former husband’s home had been subjective and based solely on his own statements. Moreover, she argued that according to domestic law the absence from the file of a social investigation by the Social Services carried out at her home rendered the court’s judgment unlawful in so far as the award of the child’s custody was concerned;
b) a psychological report or a report by a qualified social worker that would assess the possibility of building a normal parent-child relationship between the applicant and her son;
c) the hearing in person of the witness G. E., the child’s kindergarten teacher. The applicant argued that the Prahova County Court had attributed great importance to G. E.’s undated written statement attached to the file at the final hearing. She argued that she had not had the opportunity to ask G.E. direct questions before the court, which had prevented her from defending herself against the allegations made against her. Furthermore, the Prahova County Court had not referred to the statements of all the witnesses proposed by her husband but had only taken into account those that were favourable to him;
d) a list of her son’s phone call conversations in order to verify the truthfulness of B.N.’s statement that she had been present at her former husband’s home and had overheard a phone conversation between the applicant and her son where he seemed frightened of her and did not recognise her.
29. The applicant also emphasised that it could be seen from the letters she had exchanged with her husband during the time she lived in Italy, letters to which the domestic court did not attach any evidentiary value, that her husband had agreed to her seeking employment in Italy and that he had insisted on her continuing to work there. She further emphasised that her husband had been hiding from the child the fact that she, and not his father’s present wife, was his mother while at the same time continuing to take advantage of the money which she sent him. In addition, her husband had been detained for more than a year for an offence of fraud, and during that time the child had been looked after by strangers.
30. On 29 September 2005 the applicant presented orally the appeal points submitted in writing before the domestic court. She mainly argued that a social investigation at her home in Italy was important for the court to be able to assess the situation objectively. Moreover, she considered that the court should also take into account the testimony of the applicant’s witnesses and that her husband should be held to be the only guilty party for the divorce, on account of his behaviour towards the applicant and his family. Furthermore, she addressed the issue of the child’s custody and of the personal ties between the child and herself. The latter could not improve, in her opinion, if the meetings between mother and son were held at her former husband’s home. Finally, she asked the court to allow the appeal as submitted before the court.
31. By a final judgment delivered on the same day, 29 September 2005, the Ploiesti Court of Appeal partly allowed the applicant’s appeal and declared that both parties were equally guilty for the divorce on the ground that the parties had jointly taken the decision for the applicant to travel to Italy when the child was very young. Moreover, the applicant’s husband had been unfaithful to the applicant and misinformed her about their family’s situation.
32. In relation to the applicant’s complaint concerning the need for a social investigation at her home in Italy, the Ploieşti Court of Appeal dismissed her appeal and held that:
“This part of the complaint is manifestly ill-founded. A social investigation must be performed at the domicile of the parties concerned. In the case at issue it appears from the documents that the petitioner’s domicile in Romania is that of her lawyer (thus the petitioner does not have her own domicile and a social inquiry could not be performed), nor does she have a domicile in Italy, which renders a social inquiry impossible. It appears from the documents that the address in Italy provided by the petitioner is that of M.G., by whom the petitioner is employed and for whom she performs household duties. The applicant also lives there, but this cannot be considered a domicile within the meaning of the law. It follows that the county court correctly refused to order a social investigation at the petitioner’s domicile in Italy on the ground that, as has been shown, the petitioner does not have her own domicile.”
33. The Ploieşti Court of Appeal also dismissed her appeal concerning the custody proceedings, holding that:
“the custody of the child was correctly awarded to the father, because the child has been brought up by his father and it is clear that they have developed an emotional bond, a factor taken into account by the lower courts when examining the custody issue. Since he has been looked after by his father up to the age of five, it is in the minor’s best interest to continue living with him.”
34. In respect of all the other points formulated by the applicant in her appeal, the Court of Appeal held that:
“It is clear that it has been proved in the present case that the applicant’s husband can ensure the appropriate material and moral conditions required for the child’s normal development. The applicant’s affection for her son is unquestionable, but owing to the factual situation mentioned above (that is, that the child has grown up only with his father) the applicant cannot be awarded custody of the child because the main factor to be taken into account in this case, which is the child’s attachment to his mother, is lacking as a result of her departure to Italy when the child was eight months old and her failure to return.”
35. Lastly, the Ploieşti Court of Appeal dismissed the applicant’s appeal in respect of her visiting rights decided by the County Court on the grounds that she did not have a domicile in Romania and that the child could not be taken away from his father because the child did not know his mother and at his young age meeting her in a strange place without his father being present could prove traumatic for him.
36. In a letter to the Court received on 7 July 2008 the applicant informed the Court that in 2007 she had travelled to Romania three times, in February, August and December. Each time she had seen her son once for about two hours in the presence of her former husband and his second wife. During the entire time they had spent together, the child had been nervous and shy. She had allegedly informed the Child Protection Services about the situation; however, the investigation carried out by the authorities showed that there was no cause for concern. Lastly, the applicant stated that she had not opened a new set of proceedings seeking to be awarded the custody of the child or to have her access rights extended.
37. The relevant legal provisions, in particular the provisions of the Romanian Family Code in force at the time, are set forth in the judgments of Nistor v. Romania (no. 14565/05, § 50, 2 November 2010), and R.R. v. Romania (no. 1), (no. 1188/05, § 109, 10 November 2009).


ITEMID: 001-23057
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KILDACI and OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Sefer Kıldacı, Ali Kıldacı and Mehmet Yankaç, are Turkish nationals, born in 1943, 1945 and 1939 respectively, and they live in Istanbul. They are represented before the Court by Mr Koçak, a lawyer practising in İstanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated three plots of land belonging to the applicants in İstanbul. A committee of experts assessed the value of these plots of land and this amount was paid to them when the expropriation took place.
On 25 November 1997, following the applicants’ request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded them an additional compensation of 8,436,250,000 Turkish liras (TRL) plus an interest at the statutory rate of 30 % per annum.
On 10 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount, which was 14,257,956,000 Turkish liras (TRL) including the interest, was paid to the applicants on 26 May 1998.
Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000.
A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16.


ITEMID: 001-99913
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CLIFT v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+5;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1966 and lives in Westcliff on Sea.
6. On 30 April 1994 the applicant was sentenced to eighteen years' imprisonment for serious crimes including attempted murder, which carried a maximum sentence of life imprisonment. Under the legislative regime applicable at the time, he became eligible for release on parole on 13 March 2002 and entitled to release on 18 March 2005 (see paragraphs 24 and 27 below).
7. On 25 March 2002 the Parole Board recommended the applicant's release on parole on the grounds that the risk to the public had been significantly reduced; that the proposed resettlement plan would secure his rehabilitation; and that the applicant would comply with the licence conditions.
8. Under the legislation in force at the time, the final decision on early release in cases involving prisoners serving determinate sentences (i.e. fixed-term sentences) of more than fifteen years' imprisonment lay with the Secretary of State (see paragraphs 27-29 below). For prisoners serving determinate sentences of less than fifteen years and for prisoners serving indeterminate (i.e. life) sentences, the approval of the Secretary of State following a positive recommendation of the Parole Board was not required. On 25 October 2002 the Secretary of State rejected the recommendation of the Parole Board in the applicant's case, concluding that the release of the applicant would present an unacceptable risk to the public. As a result, the applicant was not released.
9. On 17 February 2003, the applicant was granted leave to bring judicial review proceedings in respect of the decision of the Secretary of State to refuse his early release. His principal ground of challenge was that it was a breach of Article 5 of the Convention taken together with Article 14 that the Secretary of State should retain the power to determine the release on parole licence of only one group of prisoners, i.e. those who were serving determinate terms of imprisonment of fifteen years or more (see paragraphs 23-31 below for details of the law in force at the relevant time).
10. The Parole Board subsequently reconsidered the applicant's case and on 17 March 2003 did not recommend release. The Court has not been provided with details of the reasons for this decision.
11. On 9 June 2003, the Divisional Court dismissed the applicant's judicial review claim. For the purposes of the proceedings, the Secretary of State accepted that the question of early release from a determinate sentence fell within the ambit of Article 5 of the Convention and that Article 14 was therefore engaged. Hooper J found that there was differential treatment between analogous groups, namely those serving sentences of fifteen years or more and those serving sentences of almost fifteen years, in that prisoners serving sentences of fifteen years or more had to secure a recommendation from the Parole Board and approval from the Secretary of State whereas those serving almost fifteen years needed only a recommendation from the Parole Board. However, he considered that the differential treatment pursued the legitimate aim of reserving to a politically and democratically accountable minister the power to control the release of those serving long determinate sentences. He further considered that the power was proportionate in light of the problems posed by such prisoners for public safety and public order. Accordingly, he found that there was no violation of Article 5 together with Article 14.
12. On 30 October 2003, the applicant was granted leave to appeal to the Court of Appeal.
13. The Parole Board subsequently reconsidered the applicant's case and on 25 February 2004 once again recommended the applicant's release. On this occasion the Secretary of State accepted the recommendation, and on 10 March 2004 Mr Clift was released on licence.
14. On 29 April 2004, the Court of Appeal endorsed the judgment of Hooper J and dismissed the applicant's appeal. It found the question of release from a determinate sentence to be arguably within the ambit of Article 5 of the Convention and agreed with Hooper J that although there was differential treatment between two comparable groups, this difference in treatment was objectively justified in that it pursued a legitimate aim and was proportionate.
15. The applicant was granted leave to appeal to the House of Lords.
16. On 13 December 2006, their Lordships unanimously dismissed the applicant's appeal. They agreed that the right to seek early release, where domestic law provided for such a right, was clearly within the ambit of Article 5 of the Convention. Lord Bingham of Cornhill noted (at paragraphs 17-18):
“The Convention does not require member states to establish a scheme for early release of those sentenced to imprisonment. Prisoners may, consistently with the Convention, be required to serve every day of the sentence passed by the judge, or be detained until a predetermined period or proportion of the sentence has been served, if that is what domestic law provides. But this is not what the law of England and Wales provided, in respect of long-term determinate prisoners, at the times relevant to these appeals. That law provided for a time at which (subject to additional days of custody imposed for disciplinary breaches) a prisoner must, as a matter of right, be released, and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged.
A number of grounds (economy and the need to relieve over-crowding in prisons) have doubtless been relied on when introducing pre-release schemes from determinate sentences such as those under consideration here. But one such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence; that in some cases those interests will be best served by releasing the prisoner at the earlier, discretionary, stage; and that in those cases prisoners should regain their freedom (even if subject to restrictions) because there is judged to be no continuing interest in depriving them of it. I accordingly find that the right to seek early release, where domestic law provides for such a right, is clearly within the ambit of article 5, and differential treatment of one prisoner as compared with another, otherwise than on the merits of their respective cases, gives rise to a potential complaint under article 14.”
17. However, unlike the lower courts, and with some hesitation, their Lordships did not find the difference in treatment in the applicant's case to be the result of his “status”, such as to fall within the prohibition on discrimination in Article 14 of the Convention. Lord Bingham said (at paragraph 28):
“I do not think that a personal characteristic can be defined by the differential treatment of which a person complains. But here Mr Clift does not complain of the sentence passed upon him, but of being denied a definitive Parole Board recommendation. Is his classification as a prisoner serving a determinate sentence of 15 years or more (but less than life) a personal characteristic? I find it difficult to apply so elusive a test. But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an 'other status', and it is hard to see why the classification of Mr Clift, based on the length of his sentence and not the nature of his offences, should be differently regarded. I think, however, that a domestic court should hesitate to apply the Convention in a manner not, as I understand, explicitly or impliedly authorised by the Strasbourg jurisprudence, and I would accordingly, not without hesitation, resolve this question in favour of the Secretary of State and against Mr Clift.”
18. Lord Hope of Craighead made similar observations (at paragraphs 46-49):
“It could be said in Mr Clift's case that the length of his sentence did confer a status on him which can be regarded as a personal characteristic. This is because prisoners are divided by the domestic system into broadly defined categories, or groups of people, according to the nature or the length of their sentences. These categories affect the way they are then dealt with throughout the period of their sentences. As a result they are regarded as having acquired a distinctive status which attaches itself to them personally for the purposes of the regime in which they are required to serve their sentences. This is most obviously so in the case of prisoners serving life sentences and where distinctions are drawn between short-term and long-term prisoners serving determinate sentences. It is less obviously so in the case of long-term prisoners serving determinate sentences of different lengths.
It must be accepted, as Lord Bingham points out, that a personal characteristic cannot be defined by the differential treatment of which a person complains. It is plain too that the category of long-term prisoner into which Mr Clift's case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty. But he had already been sentenced, and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of the Parole Board. The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator.
The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words 'or other status' while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach, that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised.
But the Strasbourg jurisprudence has not yet addressed this question and, as my noble and learned friend Baroness Hale of Richmond points out, it is possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment in Mr Clift's case ... [T]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the States Parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the second agreed issue in Mr Clift's favour.”
19. Baroness Hale of Richmond considered (at paragraphs 62-63) that:
“it is plain ... that a different parole regime for foreigners who are liable to deportation from that applicable to citizens or others with the right to remain here, falls within the grounds proscribed by article 14 and thus ... requires objective justification. The same would surely apply to a difference in treatment based on race, sex or the colour of one's hair. But a difference in treatment based on the seriousness of the offence would fall outside those grounds. The real reason for the distinction is not a personal characteristic of the offender but what the offender has done.
The result is that the difference of treatment between Mr Clift and people sentenced either to shorter determinate sentences or to life imprisonment is not covered by article 14 at all. The law may look odd. But not every apparent anomaly is a breach of Convention rights. This one is the result of what the Home Secretary chose to do in relation to people sentenced to shorter terms of imprisonment and what he was obliged by the terms of article 5 itself to do in relation to life imprisonment. The law has since been changed and one can well understand why. But it is not for us to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do. For the reasons given above, in amplification of those given by my noble and learned friend, Lord Bingham of Cornhill, we are not required to do so in this case.”
20. Notwithstanding the conclusion of the House as to the applicability of Article 14, Lords Bingham and Brown of Eaton-under-Heywood went on to consider whether, had there been “status”, the difference in treatment would have been objectively justified. Lord Bingham (at paragraph 33) was of the view that:
“When, in October 2002, the Secretary of State rejected the Parole Board's recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State.”
21. Lord Brown agreed with the conclusion of Lord Bingham.
22. Under sections 59-61 of the Criminal Justice Act 1967, all determinate and indeterminate sentence prisoners were eligible for discretionary release on licence after serving specified minimum amounts of their sentences. In both cases, once the Parole Board had recommended release, the Secretary of State had discretion to decide whether to release a prisoner.
23. The law regarding release of prisoners on parole was subsequently changed by the Criminal Justice Act 1991 (“the 1991 Act”) and the Crime (Sentences) Act 1997 (“the 1997 Act”), as amended.
24. Sections 33 and 34 of the 1991 Act created a duty to release fixed term and discretionary life prisoners once they had served a specified period of detention. Section 33 provided, in so far as relevant, as follows:
“Duty to release short-term and long-term prisoners
(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State—
(a) to release him unconditionally if that sentence is for a term of less than twelve months; and
(b) to release him on licence if that sentence is for a term of twelve months or more.
(2) As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.
...
25. Section 33(5) defined “short-term” and “long-term” prisoners:
“In this Part—
'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more;
'short-term prisoner' means a person serving a sentence of imprisonment for a term of less than four years.”
26. Section 34 dealt with the early release of discretionary life prisoners:
“Duty to release discretionary life prisoners
(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if—
(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and
(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.
...
(3) As soon as, in the case of a discretionary life prisoner—
(a) he has served the part of his sentence specified in the order ...; and
(b) the [Parole] Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.”
27. Section 35 provided for an additional discretionary power to release long-term prisoners before the two-thirds point of their sentence and provided that:
“(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.”
28. Section 50 provided a power for the Secretary of State to reduce the period of detention which had to be served before long-term prisoners became entitled to release upon a recommendation of the Parole Board by converting his discretionary power set out in section 35 into a duty in relation to a specified class of prisoners. It provided that:
“(1) The Secretary of State, after consultation with the [Parole] Board, may by order made by statutory instrument provide that, in relation to such class of case as may be specified in the order, the provisions of this Part specified in subsections (2) to (4) below shall have effect subject to the modifications so specified.
(2) In section 35 above, in subsection (1) for the word 'may' there shall be substituted the word 'shall' ...”
29. The Secretary of State exercised the power provided to him under section 50 of the 1991 Act on two occasions. Under the Parole Board (Transfer of Functions) Order 1992 his section 35 discretion to release longterm prisoners serving a sentence of imprisonment for a term of less than seven years was transformed into a duty. The subsequent Parole Board (Transfer of Functions) Order 1998 transformed the discretion into a duty for prisoners serving a sentence of imprisonment for a term of less than fifteen years. For those serving sentences of fifteen years or more, the Secretary of State retained his discretion to order early release after the halfway point and before two-thirds of the sentence had been served.
30. Section 28 of the 1997 Act was originally enacted and later amended following judgments of this Court in Hussain v. the United Kingdom, 21 February 1996, Reports of Judgments and Decisions 1996I and Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002IV. It provides, insofar as relevant:
“28. Duty to release certain life prisoners.
(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order.
...
(5) As soon as–
(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and
(b) the Parole Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless–
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
31. Section 34 sets out the definition of “life prisoner”, which covers prisoners serving various different types of indeterminate sentence.
32. The law regarding the early release of long-term determinate prisoners was amended by the Criminal Justice Act 2003, which entered into force on 4 April 2005. The new provisions regarding release on licence provide, insofar as relevant, as follows:
“244 (1) As soon as a fixed-term prisoner ... has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.
...
(3) In this section 'the requisite custodial period' means—
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more ... one-half of his sentence ...”
33. The above provisions apply to prisoners who committed their offences after 3 April 2005 or whose parole eligibility date fell after 8 June 2008 and whose offence was not a specified violent or sexual offence.
34. Section 145 of the Coroners and Justice Act 2009 further amended the law on early release to remove the difference in treatment of prisoners depending on their conviction or parole eligibility dates. It amended section 35 of the 1991 Act to provide for a duty, instead of a discretion, on the Secretary of State to release all long-term prisoners upon a recommendation from the Parole Board. This provision is not yet in force.
35. Once section 145 has entered into force, only prisoners serving life sentences with whole life tariffs will require the approval of the Secretary of State for early release. For all other prisoners, early release will either be automatic or automatic upon a recommendation of the Parole Board.
VIOLATED_ARTICLES: 14
5


ITEMID: 001-6027
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: CLUNIS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Christopher Clunis, is a British national, born in 1963 and living in London. He is represented before the Court by Mr Martin Taube, a lawyer practising in London. The respondent Government are represented by their Agent, Ms S. McCrory of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has a long history of serious psychiatric illness. According to the applicant, he was treated as an in-patient at the Bellevue Hospital in Jamaica in 1986 where he was diagnosed as a paranoid schizophrenic. There would appear to be no records of the periods of the applicant’s hospitalisation and the diagnosis.
The applicant returned to England sometime in 1987. Between 1987 and 1992 he received psychiatric treatment at a large number of hospitals in the London area. He was detained and treated on a number of occasions under the provisions of the Mental Health Act 1983 (“the 1983 Act”). The applicant was first diagnosed in England as a paranoid schizophrenic on 12 July 1988 during his detention in Brixton Prison.
On the night of 4-5 May 1992 the applicant attacked a fellow resident at the Lancelot Andrewes House Resettlement Unit in London. He was remanded to Belmarsh Prison and then transferred to a secure unit at Kneesworth House Hospital under sections 48 and 49 of the 1983 Act. Following assessment and treatment at Kneesworth House, he was transferred under section 3 of the 1983 Act to Guy’s Hospital (“Guy’s”) in August 1992.
On 24 September 1992 the order under section 3 of the 1983 Act detaining the applicant was rescinded and he was discharged from Guy’s. Dr Gupta, a psychiatrist at Guy’s, sought to make arrangements for the applicant to be seen as an out-patient by the general as well as the forensic psychiatric services at Friern Hospital (“Friern”), a hospital now closed but then under the management and control of the Camden and Islington Health Authority (“Camden”).
Dr Gupta telephoned Dr Sergeant, an Associate Specialist at Friern, and fixed an out-patient appointment. Dr Gupta then telephoned Dr de Taranto, a forensic psychiatrist at Friern, and told her that an appointment had been made for an out-patient appointment for the applicant with Dr Sergeant and that he also wished to make a referral to the forensic psychiatric services. Following discussion with a senior colleague, Dr de Taranto the next day telephoned Dr Gupta and said that the applicant should attend Dr Sergeant’s out-patient appointment and that he would be referred to the forensic team if necessary. At the time of making the appointment Dr Sergeant did not know that she had been or was to be appointed as the applicant’s “key worker”.
An appointment was made for the applicant to be seen by Dr Sergeant on 9 October 1992. He did not attend the appointment on 9 October. He was sent another appointment for 6 November, which was later changed to 13 November 1992. The applicant failed to attend the appointment on 13 November.
Sometime at the beginning of October 1992, Friern received two section 117 forms which stated that the applicant was supposed to have after-care arrangements made under section 117 of the 1983 Act and that Dr Sergeant was to be the “key worker”. No such arrangement had been agreed with Dr Sergeant or with Friern. The out-patient appointment for 9 October had not been made by Friern in pursuance of any responsibilities under section 117 of the 1983 Act.
After the applicant failed to attend his out-patient appointment on 13 November 1992, Dr Sergeant telephoned the applicant’s General Practitioner, Dr Patel, who told her that the applicant had been removed from his list of patients because of his aggressive and threatening behaviour. She then telephoned Guy’s and spoke to Dr Gupta who advised her that the police should accompany her on any mental health assessment visit and added that the applicant had not been in touch with Guy’s since his discharge. After that conversation Dr Sergeant contacted Haringey Social Services and requested that a mental health assessment visit be arranged on a planned non-urgent basis and that this should be attended by the police. It was arranged that this should take place at the applicant’s address on 30 November 1992 at 3 p.m. It appears that the applicant was not informed of this arrangement.
On 27 November 1992 Haringey Social Services informed Dr Sergeant that the applicant had been off medication for some weeks and that his behaviour was threatening. She was reminded that the applicant had stabbed someone in the past. The start of the mental health assessment visit on 30 November 1992 was slightly delayed. The applicant left the premises without being recognised by anyone in the assessment team and without being approached to ascertain if he was Christopher Clunis. No arrangements were made for a further assessment and Dr Sergeant said that she would try to see the applicant informally in order to gain his goodwill.
On 1 December 1992 the applicant went to the offices of Haringey Social Services and a member of their staff contacted Dr Sergeant who arranged an appointment to see the applicant on 10 December 1992. She asked that a duty social worker attend the meeting but said that there was no need for an approved social worker (as defined in the 1983 Act) to attend. The applicant did not attend his out-patient appointment on 10 December. Although the applicant states that Dr Sergeant took no positive step in the face of this failure to attend, the Government observe, with reference to the findings contained in an official report (“the Ritchie Report”) drawn up following a public inquiry into the handling of the applicant’s treatment (“the Clunis Inquiry”), that the social worker who had attended for the appointment with the applicant “discussed the way forward with Dr Sergeant” after the applicant failed to appear. Dr Sergeant appears to have said that the alternatives were another Mental Health Assessment visit or an attempt to persuade the applicant to visit the social services department again and then to give him another outpatient appointment. The applicant was eventually invited by letter to attend an appointment on 24 December 1992. When told of the date, Dr Sergeant apparently expressed her dissatisfaction that it was so far in advance.
According to the Ritchie Report, it would seem that attempts were made to contact the applicant between 10 and 16 December 1992, but without success. On 15 December 1992 Dr Sergeant spoke to an official in the Housing Emergency Group and expressed concern that the applicant had been discharged so quickly from Guy’s in view of his violent past. The official’s colleague made enquiries as to the availability of space in a residential hostel for the applicant. The residential hostel indicated that it would get in touch with the applicant with a view to assessing his suitability for a place and then decide whether to offer him one.
On 17 December 1992 Haringey Social Services telephoned Dr Sergeant but was unable to speak to her. When she returned their call she was told that there had been a message from the local police that the applicant was “waving screwdrivers and knives and talking about devils”. Dr Sergeant advised that the Mental Health Assessment Team should assess the applicant as soon as possible but that she first wished to check which social services authority was responsible for the applicant.
Later that day at about 1.30 p.m. Dr Sergeant questioned Ursula Robins, the duty approved social worker, as to which social services authority was responsible for the applicant and whether Friern or Chase Farm Hospital should be dealing with the applicant. By about 4.30 p.m. she had persuaded Chase Farm Hospital to accept responsibility for the applicant in place of Friern. However, following further discussions with Ms Robins, Dr Sergeant reversed that position and agreed that Friern would continue with the applicant’s care. Ms Robins visited the applicant’s flat but there was no reply. At about 7 p.m. she returned with a letter asking him to call her the next day.
At about 3.45 p.m. on 17 December 1992 the applicant killed Jonathan Zito, who was a complete stranger to him, in an unprovoked attack at Finsbury Park Tube Station in North London. The applicant seems to have believed without any justification whatsoever that Mr Zito was about to attack him.
On 18 December 1992 Ms Robins waited at the applicant’s address for the applicant to return. She was informed later that day that he had been arrested for murder.
On 28 June 1993 the applicant pleaded guilty to Jonathan Zito’s manslaughter on the basis of diminished responsibility. The plea was accepted by the Crown. The trial judge, Mr Justice Blofeld, ordered that the applicant be detained pursuant to sections 37 (hospital order) and 41 (restriction order whereby discharge from hospital requires the consent of the Home Secretary) of the 1983 Act. The restriction order was expressed to be without limit of time.
On 27 July 1993 the North East and South East Thames Regional Health Authorities instituted an inquiry into the treatment and care of the applicant which was chaired by Miss Jean Ritchie QC. The Inquiry received evidence from one hundred and forty three witnesses over a five-month period and extended its investigation back to 1986. The Inquiry reported in February 1994 and in its report concluded, inter alia:
(a) There were significant deficiencies in the care given to the applicant. “As will have been clear from our comments throughout the narrative we are of the view on the evidence we have heard, that Christopher Clunis’ care and treatment was a catalogue of failure and missed opportunity ... In our view the problem was cumulative; it was one failure or missed opportunity on top of another” (pp. 105-7).
(b) The Mental Health Assessment Team should have been arranged more quickly, and Dr Sergeant should have ensured that an earlier date was fixed (p. 80).
(c) The gap between the first request for a Mental Health Assessment on 13 November 1992 and the visit that was arranged for 30 November 1992 was far too long. There was plenty of time to prepare preliminary information about Christopher Clunis so that alternative responses following his assessment could be planned (p. 86).
(d) “Indecision and procrastination is the hall mark of the failure of Haringey Social Services to have any responsible person making decisions and monitoring decisions that had been made.” Equally Dr Sergeant left too much to the Social Services department when she should have been taking an active role. She did not involve her consultant, Dr Taylor, in managing this difficult case. As the person named as key worker under the section 117 Mental Health Act 1983 aftercare plan, Dr Sergeant knew that if she did not do so, no one else would (p. 88).
The Inquiry made a total of 14 recommendations designed to ensure that the duties under section 117 of the 1983 Act were properly fulfilled (Section V of the Report). Further recommendations were made in respect of matters such as key workers, monitoring, the assessment of dangerous and mental illness and offending.
On 14 December 1995 the applicant issued a writ claiming damages for injury, loss and damage sustained by him as a consequence of Camden’s negligence. On 12 July 1996 Camden issued a summons in the High Court seeking to strike out the applicant’s Statement of Claim on the sole ground that it disclosed no reasonable cause of action in that the principle of ex turpi causa non oritur actio or an analogous principle of public policy prevented the applicant from recovering damages. Although Camden expressly conceded for the purposes of the summons that it owed the applicant a common law duty of care at the material time and that the Statement of Claim disclosed breaches of that duty, it argued that to establish the injury and loss asserted the applicant had to rely on his own criminal act and public policy prevented this.
On 12 December 1996 Mr Richard Mawbrey QC, sitting as a deputy High Court judge, dismissed Camden’s summons on the basis that:
(a) the absolute rule of ex turpi causa non oritur actio set out in Tinsley v. Milligan [1994] I AC 340 had no application in tort cases but that there was a rule of public policy analogous to the ex turpi causa rule in contract law that a court can exclude a tortuous claim by a person who, in order to assert it, has to rely on a crime committed by him;
(b) in applying the public policy rule the court had to make a judgment on a pragmatic basis as to whether it would be offensive to the public conscience for the claimant to base his claim on his own criminal activity or more offensive for him to be deprived of what would otherwise be his normal remedy;
(c) where a claimant brings a negligence claim based on an allegation that the defendant either caused or failed properly to treat severe mental disorder, he can in principle recover as a head of claim damages for personal injury (including mental deterioration) resulting from self-inflicted harm. If this harm itself results from harming others in a criminal manner, public policy does not preclude him from recovering damages for the harm to him even though he is guilty of crime;
(d) it would not offend the public conscience for the applicant’s claim to proceed.
On 9 January 1997 Camden appealed on the grounds that the judge was wrong in law in holding that the applicant was not precluded from recovering damages consequent on his criminal act, and that the judge ought to have held that the applicant was precluded from recovering such damages on grounds of public policy. When the appeal was heard, the applicant and Camden were invited at the commencement of the hearing to address the Court on the question of whether a duty of care was owed by Camden to the applicant. On the second day of the hearing Camden advanced an argument wholly inconsistent with its concession at first instance that whilst a duty of care was owed to the applicant, such a duty could only be owed pursuant to section 117 of the Act and that breach of that duty was not actionable in private law.
In delivering the judgment of the Court of Appeal, Lord Justice Beldam stated with respect to the applicant’s argument that Camden owed him a duty of care at common law that the public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act is not confined to particular causes of action. Whether a claim is founded in contract or tort, public policy only required the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts. Lord Justice Beldam did not accept the applicant’s contention that the test to be applied should be aimed at ascertaining whether the result in a particular case would be acceptable to “the public conscience”. He cited with approval the decision of the House of Lords in Tinsley v. Milligan ([1994]) 1 A.C. 340) as authority for the proposition that, in so far as the maxim ex turpi causa non oritur actio is directed at deterrence, the force of the deterrent effect was in the existence of the known rule and its stern application. He continued:
“In the present case we consider that [Camden] has made out its plea that the [applicant’s] claim is essentially based on his illegal act of manslaughter; he must be taken to have known what he was doing and that it was wrong, notwithstanding that the degree of his culpability was reduced by reason of mental disorder. The court ought not to allow itself to be made an instrument to enforce obligations alleged to arise out of the [applicant’s] own criminal act and we would therefore allow the appeal on that ground.”
Lord Justice Beldam subsequently considered whether Camden owed a duty to the applicant under section 117 of the 1983 Act and, in the affirmative, whether a breach of that duty could give rise to a claim for damages. With reference to the wording of that provision and to the terms of section 124 of the same Act, Lord Justice Beldam found that the primary method of enforcement of the after-care obligations under section 117 was by complaint to the Secretary of State. He continued:
“The character of the duties created seem to us closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council ([1995] 2 A.C. 633, 747) as requiring:
‘exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.’
In our view the wording of the section is not apposite to create a private law cause of action for failure to carry out the duties under the statute.”
Lord Justice Beldam then addressed the applicant’s argument that the relationship of doctor and patient which existed between the district health authority and the applicant while he was in hospital continued after discharge, so that a common law duty of care was owed by the defendant to continue the applicant’s treatment. In the opinion of Lord Justice Beldam, it was difficult to conclude that it was in the circumstances just and reasonable to superimpose such a common law duty in relation to the performance of its statutory duties to provide after-care. He considered, bearing in mind the ambit of the obligations under section 117 of the 1983 Act and their repercussions on a wide spectrum of health and social services, including voluntary services, that Parliament could not have intended so wide-spread a liability as that canvassed by the applicant. Lord Justice Beldam found that Camden’s actions through Dr Sergeant were essentially in the sphere of administrative activities in pursuance of a scheme of social welfare in the community. He concluded:
“... the statutory framework must be a major consideration in deciding whether it is fair and reasonable for the local health authority to be held responsible for errors and omissions of the kind alleged. The duties of care are, it seems to us, different in nature from those owed by a doctor to a patient whom he is treating and for whose lack of care in the course of treatment the local health authority may be liable. .... We have no doubt that it would not be right to hold Dr Sergeant or [Camden] liable to the [applicant] for failure to arrange the [applicant’s] assessment for the purposes of section 117 more speedily than she did. ... For these reasons we do not think that the [applicant] can establish a cause of action from a failure by [Camden] or Dr Sergeant to carry out their functions under section 117 of the Mental Health Act 1983. Nor do we think that it would be fair or reasonable to hold [Camden] responsible for the consequences of the [applicant’s] criminal act.”
The applicant was refused leave to appeal to the House of Lords by the Court of Appeal.
The applicant’s petition for leave to appeal to the House of Lords was refused by the Judicial Committee on 8 June 1998.
A statutory duty on public authorities to provide for the care of the mentally ill after discharge from hospital was first provided for in section 28 of the National Health Service Act 1946. The Mental Health Act 1959 expanded the after-care function to include the provision of residential accommodation and the appointment of mental welfare officers. Following further enactments, the Mental Health Care Act 1983 was eventually passed. Section 3 of the 1983 Act provides:
“1. A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.
2. An application for admission for treatment may be made in respect of a patient on the grounds that -
(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.”
Section 117 of the 1983 Act provides:
“1. This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a transfer direction made under section 47 or 48 above, and then cease to be detained and leave hospital.
2. It shall be the duty of the district health authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies after-care services for any person to whom this section applies until such time as the district health authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.”
The section places a duty to consider the after-care needs of each individual to whom the section applies and is therefore quite distinct from other statutory duties to provide for the after-care of the generality of mentally disordered persons. The Mental Health Act 1983 – Code of Practice, issued by the Secretary of State under the provisions of section 118 of the 1983 Act, explains that the purpose of after-care is “to enable a patient to return to his home or accommodation other than a hospital or nursing home, and to minimise the chances of him needing any further in-patient hospital care.”
The Code of Practice requires that a key worker be appointed from either the district health authority or social services authorities to be responsible for the discharged patient. The key worker is responsible for monitoring the implementation of the patient’s care plan and liasing and co-ordinating where necessary between the individuals and agencies involved in the care plan. After-care services are not defined in the Act but could include social work support, the provision of domicilary services, the use of residential or day centre facilities. An essential component is continuing psychiatric treatment and care if the declared objective of minimising the chances of the patient returning to hospital is to be achieved.
The Government in the instant case have highlighted the various measures that have been adopted to ensure improvements in the care of the mentally ill following the recommendations made in the Ritchie Report.
There are several means by which individuals or their representatives can have complaints regarding their discharge by a local authority of its duties under section 117 of the 1983 Act investigated: a complaint to the Health Service Commissioner, a complaint to the Mental Health Act Commission or a complaint to the Commissioner for Local Administration.
According to the applicant, his relationship with Camden was one governed by both common law principles and by statute. A common law duty of care was owed to him inasmuch as a doctor-patient relationship existed between Dr Sergeant (for whose acts or omissions Camden are vicariously liable) and the applicant. Once Dr Sergeant had accepted that she and/or Friern would provide him with out-patient treatment, a duty of care arose (see Jones v. Manchester Corporation [1952] 2 All E.R. 121 per Denning LJ).
The applicant states that a duty of care was also owed to him pursuant to the duties owed under section 117 of the 1983 Act. The Court of Appeal in his case characterised these duties as being closely analogous to those described by Lord Browne-Wilkinson in X (Minors) v. Bedfordshire CC ([1995] 2 AC 633 at 747) as requiring “exceptionally clear statutory language” to indicate a parliamentary intention that the breach of such duties would give rise to an actionable claim for damages. It determined that the wording of section 117 of the 1983 Act was not apposite to create a private law cause of action for failure to carry out the duties under the Act. It also rejected the argument that a common law duty of care should be superimposed in relation to the performance of its statutory duties to provide after-care, on the basis that the duty of providing after-care services was different in nature from that owed by a doctor to a patient whom he is treating. The court held that it would not be just and reasonable to superimpose a common law duty of care on Camden in relation to the performance of its statutory duties to provide after-care.
Prior to the Court of Appeal’s determination, the rule of public policy that the court will not lend its aid to a litigant who relies on his own criminal or immoral act was confined to particular causes of action. It has its origins in contractual claims. The principle was modified in relation to tortuous claims by the application of “the public conscience test”. This was applied in a line of cases in the Court of Appeal between 1986 and 1994 where it was held to be right “to adopt a pragmatic approach to these problems seeking where possible to see that genuine wrongs are righted so long as the Court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn.” (Saunders v. Edwards [1987] 1 WLR 1116 per Bingham LJ).
In Reeves v. Commissioner of Police for the Metropolis ([1998] 2 WLR 401), the Court of Appeal applied the “public conscience test” to determine whether ex turpi causa, or an analogous rule of public policy, would prevent the estate of a detainee who had committed suicide whilst in custody from recovering damages. In doing so the court was aware that the test had been disapproved by the House of Lords in Tinsley v. Milligan which was, however, a contractual claim, being the locus classicus for the application of the maxim.
In Meah v. McCreamer (No. 1) ([1985] 1 All ER 367) substantial damages were awarded to a plaintiff who had suffered head injuries in a road accident and who claimed that, but for the consequent personality change, he would not have committed the offences of sexually assaulting and maliciously wounding two women and raping and maliciously wounding a third woman for which he was sentenced to life imprisonment. In Meah (No. 2) ([1986] 1 All ER 943) the plaintiff’s action to recover damages, which had been awarded against him to two of the victims of his crimes, was dismissed on the grounds that the damages awarded to the victims were too remote to be recoverable and that such an award would be contrary to public policy. Woolf J rejected the contention that such an argument would have affected the award of damages he had made in Meah (No. 1).
The offence of manslaughter is a crime which varies infinitely in its seriousness and the underlying intentionality of the act. Public policy must reflect the variety in degree of culpability. Such a principle was endorsed by the Court of Appeal in Gray v. Barr ([1971] 2 QB 554) when it considered the application of the forfeiture rule in relation to the rights of inheritance, and by the Divisional Court in R. v. Chief National Insurance Commissioner ex parte Connor ([1981] QB 758). In the case of forfeiture Parliament intervened by passing the Forfeiture Act 1982 to prohibit the inflexible application of public policy. In Dunbar v. Plant, Phillips LJ observed that:
“the harshness of applying the forfeiture rule inflexibly to all classes of manslaughter in all circumstances is such that I do not consider that, absent the statutory intervention which occurred, the rule could have survived unvaried to the present day... Furthermore, it seems to me that the only way of modifying the rule would have been to have declined to apply it where the facts of the crime involved such a low degree of culpability, or such a high degree of mitigation, that the sanction of forfeiture, far from giving effect to the public interest, would have been contrary to it. Alternative suggestions that the rule should be restricted to cases of deliberate killing, or deliberate violence leading to death, do not cater for cases of diminished responsibility or provocation, where the mitigating features may be such as to render it particularly harsh to apply the forfeiture rule.”
Under the rules set out in M’Naghten’s Case ([1843]10 Cl. & F. 200). (“the M’Naghten” rules), the accused must prove on the balance of probabilities (or to counter his claim of diminished responsibility the prosecution may prove, but beyond reasonable doubt) that at the time of the act he was “labouring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know it was wrong”.
The sentence for manslaughter by reason of diminished responsibility is at large unlike murder where the penalty is fixed by statute as being a life sentence. Section 2 of the Homicide Act 1957 provides that the accused must be suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind, or any inherent cause, or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
According to the applicant, the distinction between conviction of guilty of manslaughter by reason of diminished responsibility and acquittal of murder by reason of insanity can, in practice, be artificial. The applicant observes that, until recently, the consequences of a verdict of insanity were so unattractive that an accused would very rarely accede to such a verdict or enter such a plea. In the applicant’s view, this was because, until the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, a court would be required to admit such an individual to a hospital subject to a restriction order without limit of time and with no flexibility or discretion given to the sentencing judge.