ITEMID: 001-94331
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MUBARIK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Iqbal Mubarik, is an Indian national who was born in 1958 and lives in London. He is represented before the Court by Hughes Fowler Carruthers, a law firm based in London.
The applicant comes from a successful family of jewellers. In around 1980, the applicant moved from India to Kuwait, where he began a business working with his cousin and brother-in-law, Mr Wani. It is disputed whether the applicant and Mr Wani were equal partners in the business in Kuwait and in subsequent businesses established.
In 1983, the applicant married and his wife, Mrs Mubarak, joined him in Kuwait.
By 1986, the applicant wished to expand the business outside Kuwait. He incorporated the Kuwait business, which became Dianoor International Ltd, Hong Kong. The applicant and his family subsequently moved to Hong Kong.
The applicant claims to have entered into a written joint venture agreement with Mr Wani in February 1987 specifying that they were in business as equal partners, each owning 50 per cent of the assets and being responsible for 50 per cent of the liabilities of the jewellery business. This claim was later contested by Mrs Mubarak.
In September 1993, the applicant incorporated Dianoor Jewels Ltd, a UK company. The company acquired the lease of a shop in London and the applicant has subsequently built up a prestigious jewellery business trading from those premises.
In March 1994, the applicant caused a Bermudan company to be formed, 21st Century Holdings Ltd. Initially the applicant and Mrs Mubarak were the two shareholders and directors.
It was around this time, Mrs Mubarak alleges, that the marriage began to deteriorate.
The applicant claims that he and Mr Wani entered a second joint venture agreement in April 1996.
In the summer of 1996, the applicant decided to set up an offshore trust, following tax advice from his lawyers.
In July 1997, a Jersey company, Dianoor Jewels International Ltd, was incorporated as a wholly owned subsidiary of 21st Century Holding Ltd. Dianoor Jewels International Ltd became the holding company for the other three companies in the Dianoor Group, including Dianoor International (Hong Kong) and Dianoor Jewels Ltd (UK). At the same time, most of the shares of 21st Century Holding Ltd were bought in by the company and loan accounts in the name of the applicant and Mrs Mubarak were set up.
In August 1997, the applicant and his family moved to the United Kingdom. On 2 September 1997, the IMK Family Trust was created in Jersey. Its trustees were Craven Trust Co. Ltd (Jersey). The applicant and Mrs Mubarak transferred their remaining shares in 21st Century Holding Ltd to the Craven trustees, to be held under the terms of the trust. The settlors of the trust were therefore expressed to be the applicant and Mrs Mubarak, and the beneficiaries were the applicant and Mrs Mubarak and their children.
On 20 March 1998 the applicant and Mrs Mubarak separated. The applicant subsequently removed Mrs Mubarak as a beneficiary of the IMK Family Trust and a second Jersey trust, the Dianoor Foundation for Art Trust.
Mrs Mubarak applied to the High Court for a decree nisi and ancillary relief for herself and the four children of the family. The hearing commenced on 29 November 1999.
On the third day of the hearing, the applicant and his legal team withdrew from the proceedings following the discovery that evidence upon which the applicant sought to rely in order to support his claim that he had entered into a second joint venture agreement with Mr Wani was false.
The hearing continued in the applicant’s absence. Mr Justice Bodey had the benefit of evidence from experts instructed by the applicant and by Mrs Mubarak on the global trading conditions for the jewellery industry. Mrs Mubarak’s expert also gave oral evidence.
In his judgment of 10 December 1999, Mr Justice Bodey considered the financial position of the applicant in light of the evidence he had heard regarding the jewellery industry. The judge also considered other assets held by the applicant, or alleged to be held by him. He concluded that the applicant had other undisclosed assets which were or may be of considerable value.
As to the applicant’s claim that Mr Wani was entitled to 45 per cent of all his assets, the judge noted that all the relevant assets were in the applicant’s sole name and were not legally owned in any way by Mr Wani. He found that the burden must fall on the applicant and Mr Wani to establish the equitable or moral claim asserted by Mr Wani, on a balance of probabilities. The judge considered affidavits from some 25 witnesses as to the existence of a partnership between the applicant and Mr Wani and took into account expert evidence as to the cultural differences between business arrangements in India compared to the United Kingdom. He found that:
“I am satisfied that nothing said by the [applicant], Mr Wani or their witnesses is sufficiently cogent (certainly without having seen them and heard them cross-examined) to outweigh the matters set out ... below, the strong thrust of which is firmly against the existence of any kind of partnership or sharing agreement”.
Mr Justice Bodey made an order that the applicant should pay to Mrs Mubarak a lump sum of GBP 4,875,000. He was further ordered to make periodical payments of GBP 12,900 to Mrs Mubarak until payment of the lump sum, as well as periodical payments in respect of the children. The judge also ordered that if the applicant failed to pay the lump sum or provide security for it within three hours of being served with the judgment, then he should deliver up to Mrs Mubarak’s solicitors the whole stock of jewellery and artefacts listed in a schedule delivered to the court (owned either by Dianoor Jewels Limited or Dianoor International Limited) to be sold to meet the award made under the judgment.
The applicant sought to appeal the order. On 3 April 2000 the Court of Appeal dismissed his application for permission to appeal. Thorpe LJ referred to the husband’s and Mr Wani’s evidence about the alleged joint venture agreement as being “nothing more nor less than a fraud”, and he considered significant the husband’s “determined” and “dishonest” litigation strategy.
On 23 October 2000, having heard evidence from several parties, including the financial director of one of the Dianoor companies, Mr Justice Bodey in the High Court accepted that as a matter of law, the court could not “pierce the corporate veil” (i.e. it could not ignore the company/trust structure through which the jewellery stock was owned). He therefore discharged the paragraph of his order of 10 December 1999 in which he ordered the delivery up and sale of the jewellery stock. He found nonetheless that the applicant did have undisclosed assets from which he could make the lump sum payment. He further considered that it was plain that the applicant controlled the IMK Family Trust, which was revealed both by the documents setting up the trust and the ease with which he had arranged for Mrs Mubarak’s name to be removed from the trust beneficiaries. While the court was not able to pierce the corporate veil in order to seize the company assets directly, the applicant could nonetheless in practice use his ultimate ownership of the business structure to raise the sums required by accessing the underlying resources.
By March 2005, Mrs Mubarak had obtained a total of GBP 266,000 of the lump sum through charging orders on two flats owned by the applicant. The applicant made the periodical payments in full until April 2003, at which point he began making reduced payments of around GBP 8,000. In August 2003, he reduced the payments further, to around GBP 5,800. He stopped the payments altogether in May 2005.
On 7 March 2005, Mrs Mubarak made an application to enforce the unpaid balance of the lump sum. She sought: (a) to set aside the transfer of assets into the IMK Family Trust in 1997; (b) to set aside the document of exclusion in 1998 whereby the applicant excluded her as a beneficiary of the trust; (c) to vary the trust as a post-nuptial settlement such that the trustees would hold for her absolutely that value of the trust assets as equated to the outstanding sums arising from the 1999 orders; and (d) to be released from an undertaking given by her not to litigate against the trust except within the jurisdiction of England and Wales. In addition to the primary relief sought, Mrs Mubarak also sought an order barring the applicant from opposing her applications by taking part in proceedings, pursuant to a jurisdiction founded on a Court of Appeal decision from 1952 in the case of Hadkinson v. Hadkinson [1952] P 285 (“a Hadkinson order”).
On 9 May 2006, Mr Justice Bodey delivered judgment in relation to Mrs Mubarak’s application for a Hadkinson order. He accepted that a Hadkinson order was competent where a party to proceedings was in contempt and concluded that non-payment in breach of a matrimonial order to pay money was in itself a contempt of court, whether or not such non-payment could be described as “culpable” (i.e. whether or not the non-paying party had the means to pay). The question therefore arose as to how the court ought to act on the contempt established. Mr Justice Bodey considered it “blindingly obvious” that the applicant could have paid a great deal more towards the outstanding balance of the lump sum than he had paid. However, in the event, he refused to make an order barring the applicant from the proceedings altogether. Instead, he made an order requiring the applicant to fulfil certain conditions before he would be able to participate in the substantive hearing. He noted (at paragraph 88 of his judgment):
“I am satisfied that the husband can and should be placed on certain terms. This is exceptional and unusual, but it is an exceptional and unusual case. To echo the words of Lord Denning in Hadkinson, it merits ‘a strong thing’.”
As to the terms of the order, the judge stipulated as follows:
“(a) By 12th June 2006 (or by such other date as the parties may agree or the court may direct) the husband do by recorded delivery letter inform the trustees of the Jersey Trust in terms expressed to be irrevocable:
(i) that he accepts that he is bound by the court’s orders, awards and findings of 10th December 1999 and cannot go behind them (including in particular the finding that Mr. Wani has no interest in the Trust assets);
(ii) that he wishes the trustees to assist him in meeting his obligations under the orders of this court and wishes them not to take any steps having the effect of making it more difficult for him to do so; and
(iii) that he accepts that (subject to appeal) he is bound by whatever orders the court may make on the wife’s pending applications in December 2006, and that (again) he wishes the trustees to give full effect to those orders; and
1. (b) For each £1 he pays to his own lawyers for preparation, representation or advice in respect of the December 2006 hearing from now on, he do pay £1 into a joint account in the names of the parties’ respective solicitors. (This is what I called during the hearing ‘pound for pound’). The money so lodged is to be held to the order of the court, but is to be paid out to the wife’s solicitors at the conclusion of the December 2006 hearing unless, when dealing with costs at the end of that hearing, the court should positively rule otherwise in its overall discretion.
(c) The husband’s solicitors are, by 14th June 2006, to confirm to the wife’s solicitors whether the husband has complied with paragraph (a) of these terms (enclosing a copy of the husband’s letter concerned) and are to keep the wife’s solicitors regularly appraised of each payment made to them by the husband from now on, unless any such payment is not in any way connected with the December 2006 hearing.”
The order stipulated that in the event of a dispute as to whether the applicant had complied with the terms of the order, the parties were at liberty to apply to the court for a determination on the matter.
In making the order, the judge was mindful of the requirements of Article 6. In particular, he commented:
“90. These terms are not intended to punish or penalise the husband, which would be a wrong objective ... Rather they have what I regard as the legitimate aims of trying to create a fair hearing for both parties and/or facilitating the enforcement of the court’s orders ...
91. The terms are also, in my judgment, proportionate. The link exists which [counsel for the applicant] submits is required between contempt and sanction. ‘Term (a)’ requires the husband to do no more than to attempt to comply with the orders of the court. ‘Term (b)’ seeks to moderate his ability to continue to employ a Rolls-Royce legal team whilst simultaneously failing to pay the wife any of the monies owed to her and leaving her reliant on credit in trying to achieve enforcement.
92. Only ‘term (b)’ requires the husband to find any money. It does not stop him litigating nor being legally represented. It merely creates an opportunity for the court to ensure that this wife, who is owed substantial sums, is not unduly disadvantaged in funding the litigation by reason of the husband’s wilful non-compliance with the court’s orders ...
93. If the husband complies with the above terms then he may fully participate at the hearing in December 2006. Otherwise he will be debarred from so doing.”
The applicant sought leave to appeal against the order. Leave was refused on 19 July 2006.
On 20 July 2006, the applicant wrote to the trustees of the IMK Family Trust purporting to comply with the conditions of the order of 9 May 2006. In his letter, he emphasised that he was “deeply unhappy at being compelled by the court to write in this manner” and that his “sole purpose in doing so is to enable me to resist strenuously the current application which my wife has made”. He confirmed that he was bound by previous findings of the court as to Mr Wani’s interest “... despite the fact that neither Mr Wani nor I agree with the findings the learned judge made and that I contend that he made an order for me to pay a sum that I cannot afford to pay”. He confirmed that he would be bound by an order made in December 2006 and continued:
“I wish to give effect to any such order provided that this can be achieved without prejudicing the viability of Dianoor’s companies to trade, or prejudicing their obligations to their employees or their liabilities to their creditors.”
The letter concluded by stating that the applicant would like the trustees to assist him in meeting his obligations to pay his wife the sums awarded, again provided that the money could be raised without prejudicing the viability of Dianoor’s companies to trade, or prejudicing their obligations to their employees or their liabilities to their creditors.
On 31 July 2006, Mrs Mubarak applied to the court for a determination of whether the applicant had satisfied the conditions imposed.
On 25 August 2006, Mr Justice Bodey found that the applicant had failed to comply adequately with the terms set out in paragraph (a) of the order. He made a further order, in the following terms:
“Unless the [applicant] shall send by recorded delivery by 6p.m. on 31st August 2006 to the Trustees of the IMK Family Trust a letter in the terms of the letter attached to this order, pursuant to ... the order of 9th May 2006 he shall be debarred from participating in the substantive hearing of [Mrs Mubarak’s] applications listed for hearing on 4th December.”
The attached letter reproduced almost exactly the terms of paragraphs (a) (i) to (iii) of the order of 9 May 2006.
The applicant subsequently sent a letter in the ordered terms and the proceedings before the High Court took place with his participation.
On 12 January 2007, Mr Justice Holman gave judgment. He refused the first two applications, namely to set aside the transfer of assets into the IMK Family Trust in 1997 and to set aside the document of exclusion in 1998 whereby Mrs Mubarak was excluded as a beneficiary of the trust. However, he granted the third application and varied the terms of the IMK Family Trust so as to require the trustee to pay Mrs Mubarak an amount equalling the balance owing under the lump sum, any arrears of periodic payments and the balance of costs still due.
The applicant’s application for leave to appeal was dismissed by the Court of Appeal on 17 July 2007. Wall LJ noted that in refusing leave on the papers, Thorpe LJ had commented that:
“... the application falls to be considered in the context of over 7 years of litigation, rightly described by Holman J as ‘Titanic’. The husband is and has been for years in contempt. He cynically incurs and discharges massive litigation bills with, as I infer, the intention of depriving the wife of her entitlement to independent affluence. This court should not encourage or collude in his apparent strategy.”
Wall LJ later reiterated (at paragraph 31):
“At this point it is, I think, necessary, and therefore needs to be stated again, that this is not a case of cannot pay; it is case of will not pay, and one of the worst of its kind.”
He later added (at paragraph 34):
“I remind myself that the reason for the application has been [the applicant’s] grossly contumacious refusal to pay. Had he paid, none of this would be necessary.”
Mrs Mubarak then applied to the Royal Court of Jersey, where the trust was based, seeking enforcement of the order of Mr Justice Holman. On 15 August 2008, the court handed down its judgment. It noted that by that stage, some GBP 7.6 million was owed to Mrs Mubarak but concluded that it was unable to enforce the judgment of the English High Court in light of the relevant legislation in force in Jersey. However, it considered an alternative argument advanced by Mrs Mubarak that the trust could be varied by consent of all the beneficiaries, namely the applicant and the children of the marriage. The court noted that the two adult children consented to the variation in favour of Mrs Mubarak. As regards the minor and unborn children, the court approved the alteration of the trust as being to their benefit. In respect of the applicant, the court considered his letter to the trustees following the order of Mr Justice Bodey of 25 August 2006 and concluded that the letter demonstrated that the applicant had consented to the variation of the trust. It emphasised that the applicant had had a choice whether to refuse to write the letter, and thus be prevented from participating in the hearing before Mr Justice Holman, or to write the letter and thereby be able to participate in the hearing. The court noted (at paragraph 86):
“It was a matter entirely for [the applicant]. He chose the latter course. He wrote the letter. He therefore obtained the advantage of appearing before Holman J and he did this by leading and junior counsel who argued strongly against the wife’s application. It is of interest that the hearing before Holman J apparently took 9 days.”
The court concluded (at paragraphs 87 to 89):
“The terms of the August 2006 letter are clear. The husband confirms that he is bound by the Holman order and wishes the Trustee to give effect to it, i.e. he wishes effect to be given to the alteration to the Trust made by Holman J. Is he now to be allowed to renege on that letter? We do not think so. The husband chose to write the letter and to participate in the hearing before Holman J. The whole purpose of the Hadkinson order made by Bodey J was to require the husband to agree to be bound by the outcome of the hearing before Holman J if he wished to participate. In exchange for this assurance, the husband was permitted to participate in the hearing and to seek to persuade Holman J not to accede to the wife’s application. In this respect he was successful on two of the three heads of application ... He therefore obtained a tangible advantage by agreeing to write the August 2006 letter.
We strongly deprecate the idea that, having obtained this advantage, he should now be permitted to disown the August 2006 letter as, for example, he has sought to do in a recent undated letter to the Trustee indicating that he opposes the wife’s application to this Court. He has made his choice and he is bound by it. We therefore have no hesitation in finding that he should be treated as consenting to the alteration to the Trust contained in the Holman order notwithstanding his later attempt to renege.
We would emphasise that our decision to treat the husband as having consented on the basis of the August 2006 letter is wholly exceptional in the light of the particular circumstances of this case. Firstly, the husband was in flagrant and longstanding contempt of the English order; but secondly and most importantly, he exercised his free will in choosing to write the letter ...”
The applicant’s appeal against the Royal Court’s judgment was unsuccessful.
It used to be the case in the United Kingdom that a person in contempt would not be heard, although there were certain defined exceptions. However, this rule was clarified in the case of Hadkinson v. Hadkinson [1952] P. 285, in which Lord Denning indicated that:
“... It is a strong thing for a court to refuse to hear a party to a cause and it is only be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing [his] compliance ... I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not, of itself, a bar to his being heard but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”
This approach was accepted and approved by House of Lords in X Limited v. Morgan-Grampian (Publishers) Limited [1991] 1 AC 1, in which Lord Oliver of Aylmerton stated:
“... It is suggested that to decline to hear an Appellant who is in contempt infringes the maxim ‘audi alteram partem’ which lies at the route of every civilised system of law ... For my part I think this is too facile an analysis. The maxim ‘audi alteram partem’ means not that a party has an absolute right in all circumstances to be heard in his own defence, but that he must be given a proper opportunity to be heard. So long as that opportunity is given upon terms with which the proposing appellant can reasonably comply, there is not and there should not be any impediment in principle to the imposition by the court of proper conditions which require to be complied with before the appeal is heard ...”
Subsequently, in Arab Monetary Fund v. Hashim (Unreported) 21st March 1997, Lord Bingham C.J. (as he then was) formulated the relevant question as follows:
“... whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders.”
This was approved by Lord Nicholls in the House of Lords in Polanski v. Conde Nast Publications Limited [2005] UKHL 10.
As regards the implications of limitations on access to court and compliance with Article 6 of the Convention, Potter LJ indicated in Motorola Credit Corporation v. Uzan (No.2) [2004] 1 W.L.R. 113 that:
“... It is clear that the right of access to the court which is implied in Article 6 is not an absolute right but one that is open to restriction provided that the restriction has a legitimate aim in the public interest and that the means employed to realise that aim are proportionate ... The test of proportionality is to be applied on a case by case basis ... As it seems to us, this is reflected in the approach of the House of Lords in X Limited v. Morgan-Grampian (Publishers) Limited ... the width of discretion there recognised being apt to allow issues of proportionality to be properly considered and applied by the court in coming to its decision whether or not to hear a contemnor.”


ITEMID: 001-5748
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KÖSZEGI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Hungarian national, born in 1943 and living in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992 the Buda Central District Court issued on behalf of the applicant a pay order against a co-operative. The applicant claimed that the defendant co-operative be ordered to pay certain sums of outstanding fees to him in the context of a maintenance contract.
From 5 October 1992 the proceedings, upon the defendant co-operative’s objection, were continued as civil litigation.
On 28 January 1993 the applicant presented his detailed arguments challenging the defendant co-operative’s objection.
On 25 February and 13 April 1993 the District Court held hearings in the case. On 30 June 1993 it appointed a technical expert, who presented his opinion on 8 February 1994.
On 24 February 1994 the applicant extended his action, claiming some amounts of lost profit, accrued interest and social security contribution payable by the defendant co-operative.
In his submissions of 16 March 1994 the applicant commented on the expert’s opinion and challenged him for bias. He also requested the District Court to examine his claims as extended by his submissions of 24 February 1994.
On 18 March 1994 the District Court rejected the applicant’s motion for bias.
On 6 April 1994 the applicant again extended his action, claiming a further amount of lost income and non-pecuniary damage.
On 28 April 1994 the District Court held a hearing and took its decision in the case. It admitted the majority of the applicant’s claims for outstanding fees, awarding him some 71,000 Hungarian forints plus accrued interests, and dismissed the remainder of the action. The District Court relied on the relevant statutory fee standards and on figures elaborated by the technical expert, holding that his opinion was not doubtful in any manner.
On 16 June 1994 the applicant appealed. He claimed that the appeal court should examine his extended claims submitted on 24 February and 6 April 1994.
On 12 January 1995 the applicant again extended his action, this time claiming compensation for pecuniary damage.
On 20 January 1995 the Budapest Regional Court held a hearing. At the hearing the applicant’s lawyer requested the Regional Court to grant the applicant an award according to his extended claims.
In its decision dated 20 January 1995 the Regional Court upheld the first-instance judgment.
On 16 March 1995 the applicant filed with the District Court a petition for review by the Supreme Court, which was registered by the Supreme Court on 8 May 1995.
On 29 May 1995 the defendant co-operative brought a supplementary petition for review before the Supreme Court. On 1 June 1995 it requested the Supreme Court to hold an oral hearing.
On 17 April 1996 the applicant requested from the Supreme Court that his case be given priority.
On 5 June 1996 the Supreme Court fixed an oral hearing for 10 September 1996.
In his submissions of 5 July 1996 the applicant argued that the technical expert’s opinion in the case had been erroneous and pointed out that the Regional Court had ignored his submissions of 12 January 1995.
On 10 September 1996 the Supreme Court held a hearing. In its decision dated 10 September 1996, it dismissed the applicant’s petition for review and rejected the defendant co-operative’s supplementary petition.
Upon the applicant’s complaint, on 23 February 1998 the Vice-President of the Buda Central District Court confirmed that in the preceding proceedings the applicant’s additional claims, submitted on 24 February and 6 April 1994 and 12 January 1995, had not been examined. The Vice-President explained that these claims could only be adjudged in a new set of proceedings, given that the applicant’s original action had been finally terminated.
(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate to prevent damage.
(3) These rules shall also apply to liability for damage caused by courts or the prosecution authorities, unless otherwise provided by law.
(1) The court shall … enforce the parties’ rights to have their civil rights and obligations determined in fair proceedings and within a reasonable time.
(1) The court shall decide a civil-law dispute solely upon request to this effect. Unless otherwise provided by law, requests shall be lodged only by a party interested in the dispute.
(1) The plaintiff may, at any time before termination of the last hearing prior to the delivery of judgment, modify his action provided that the right pursued in the modified action is based on the same legal relation as the original action or is related thereto…
(1) The decision contained in a judgment shall cover all the claims included … in the action.
(1) In his appeal, the appellant shall denote the decision challenged and shall specify, to what extent and for what reason he wishes the decision to be amended. New facts or evidence shall not be admitted unless the appealing party has taken cognisance thereof after the first-instance decision was taken, provided that they would have resulted in a decision more favourable for the appealing party, had they been taken into account. New facts, evidence or motion to take evidence refused by the first-instance court shall also be admitted if they are aimed at demonstrating that the first-instance decision has been taken in breach of the law…
(1) The appeal court shall decide on the merits of the case on the basis of the appeal hearing, unless it is to decide [according to other] provisions of this Act.
(2) If the first-instance court’s decision is correct as to the merits, the appeal court shall uphold it, otherwise the appeal court shall amend it wholly or partly, or pass an interim or a partial decision.
(3) The appeal court may amend the first-instance decision within the limits of the claims in the appeal … and the counter-appeal … However, within these limits, it may also decide on questions underlying the rights claimed and the defence which remained unexamined or undecided by the first-instance court…
(1) Unless otherwise provided by law, a petition for a review of the final decision by the Supreme Court may be filed, alleging a breach of law, by any party…
(1) If the decision under review is found to be in conformity with the law, or if the procedural irregularity which has occurred had no substantial impact on the determination of the merits of the case, the Supreme Court shall uphold it.
(1) The president of the court shall: (a) within the limits of the budget, secure staff and facilities necessary for the operation of the court; (b) exercise employer’s rights assigned to him by the law; (c) manage the court’s financial and economic activity; (d) control that procedural deadlines be respected; (e) see to it that regulations and administrative rules be respected; (f) in compliance with the principles established by the National Council of Justice, work out the court’s organisational and operational regulations, elaborate the court’s working methods and schedule, and control the implementation thereof; (g) direct and control his subordinates’ administrative activity; (h) secure the conditions necessary for the judicial bodies’ operation, and convoke the plenary court’s meetings; (i) secure free exercise of staff committees’ rights; (j) organise and accomplish the educational and training tasks assigned to him; (k) yearly inform the plenary court and other staff about the working of the court; (l) be responsible for maintaining … registers and … supplying data; (m) carry out the tasks assigned to him by the law or resolutions of the National Council of Justice.
The vice-president shall, with full authority, act for the president of the court in his absence, and shall carry out the administrative duties assigned to him by the organisational and operational regulations of the court.


ITEMID: 001-72818
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WILKINSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza;Simon Brown
TEXT: The applicant, Mr John Wilkinson, is a United Kingdom national, who was born in 1932 and is a resident of Broadmoor Hospital in Berkshire. He was represented before the Court by Ms Scott-Moncrieff, a solicitor practising in London.
The applicant is subject to hospital and restriction orders under the Mental Health Act 1983 (“the 1983 Act”) following his conviction for rape of a minor in October 1967. He is therefore detained in a psychiatric hospital. In April 1998 the applicant suffered a mild heart attack (when he was awaiting surgery for another condition) and thereafter was diagnosed as suffering from minor coronary disease.
Throughout his period of confinement, there has been considerable debate as to whether he was mentally ill. There was a consensus that he suffered from a “psychopathic personality disorder”, a condition not classed as a mental illness. However, there was disagreement as to whether he also suffered from a mental illness.
On 11 October 1988, for example, the Mental Health Review Tribunal found that he was suffering from a mental illness. Following that decision, Dr O, the applicant’s responsible medical officer at the time, proposed treating the applicant with anti-psychotic medication. She sought a second opinion from Dr L, a second opinion appointed doctor (“SOAD”) appointed by the Mental Health Act Commission. Dr L did not give the necessary authority. He considered that there was sufficient evidence to suggest that the applicant might be suffering from a psychosis to justify treatment in the event of his agreeing to it, but not sufficient evidence to justify treatment against his wishes.
In July 1999 another responsible medical officer (“the RMO”) took over the applicant’s care. The RMO formed the view that the applicant’s pronounced paranoid beliefs and attitudes were due, not only to his personality disorder, but also to an underlying psychotic mental illness. In any event, the RMO considered anti-psychotic medication necessary to relieve the applicant of his “paranoid ideation”. These views were reflected in the RMO’s report of December 1999.
In 1999 (it is not clear precisely when), the RMO proposed the new medication to the applicant and the applicant refused it: from the outset, he made it clear that he would physically resist it. Since he was not consenting, the treatment had to be certified by a SOAD (see section 58(3)(b) of the 1983 Act below). On 31 January 2000 the RMO requested the appointment of a SOAD. Dr H (“the SOAD”), a highly experienced consultant psychiatrist, was appointed.
On 17 February 2000 the SOAD examined the applicant (it was disputed during the domestic proceedings how long this examination took: 5 minutes according to the applicant; 30-40 according to the SOAD). The SOAD issued a certificate of second opinion on that date certifying that the applicant was not capable of understanding the nature, purpose and likely effects of the proposed medication, “but that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, it should be given”. The certificate authorised a plan of treatment whereby the specific drugs would be administered on a number of occasions. The SOAD also signed a Form 39 confirming that the statutory criteria had been fulfilled.
The RMO was concerned that, when faced with a threatening situation, the applicant was apt to become extremely anxious and agitated and that he had acted violently on many occasions (for example by starting fires). As a result, he and the other members of his clinical team arranged that the applicant would have no notice of the SOAD’s arrival to the hospital and that the medication would be administered immediately after the certification had been obtained.
Accordingly, on the same day that the SOAD’s certificate was signed (17 February 2000), the applicant was given anti-psychotic medication by the RMO against his will. On 2 March 2000 he was again injected with the same medication. On each occasion, the applicant physically resisted and had to be restrained by members of staff. On the first occasion, he suffered an angina attack and had to be taken to a seclusion room. The applicant claimed that he subsequently suffered significant side-effects from the treatment, including low blood pressure and chest pain.
Since a further injection was due to be administered on 16 March 2000, the applicant consulted his solicitors on 8 March 2000. The applicant sought judicial review of the decision to administer the treatment. The only relief he sought was a declaration that the proposed future treatment would be unlawful. He did not seek any relief in relation to the past treatment. On 15 March 2000 the High Court gave him leave to apply for judicial review and granted an injunction preventing further treatment pending the hearing of his substantive challenge.
His solicitors obtained a report from a consultant psychiatrist (Dr G) and the RMO and the SOAD (two of the respondents in the applicant’s proceedings) prepared witness statements.
In his first witness statement, dated 10 April 2000, the RMO said the following:
“The conclusion of my opinion is that I believe medication holds out a real prospect of giving benefit to the applicant. I wish to emphasise that what I am proposing is a trial of medication only in order to see what benefit the patient derives from it. If there is no benefit then the trial will be stopped. I believe the patient is suffering from mental illness. The essential point in my view is that whether one favours a diagnosis of mental illness or one of personality disorder a trial mediation [sic] can and should be given for the paranoia which all doctors agree is both present and considerable...
Although other psychiatrists think otherwise I think it would be unsafe to move [the applicant] to conditions of medium security without giving him a trial of medication. [The applicant] has been attempting to get the Mental Health Review Tribunal to support his moving to conditions of medium security and the Tribunal adjourned in July 1999 in order, among other things, for a report to be obtained from Dr [S]... Dr [S] reassessed him and in a report dated 25 August 1999 Dr [S] said... “I do not believe that a treatment with antipsychotic medication at the present time would be indicated”...
I wrote a letter to Dr [S] dated 3 February 2000...saying that I intended to give [the applicant] a trial of medication. Dr [S] replied in his letter of 11 February 2000 saying that he would be very happy to await the outcome. He wrote ... “I am a strong believer in a “trial of mediation”[sic] in patients such as [the applicant] who have spent many years in hospital and have been unsuccessful moving on. I can think of several patients who have successfully moved from Broadmoor to Ravenswood House where previously undiagnosed mental illness was treated with successful results. I would therefore be very interested in the outcome of any trial of antipsychotic medication”...
For the reasons above the patient’s best interests are served by trial medication. The potential benefit could be considerable enabling the patient to move on to a less secure and restrictive hospital and possible eventual return to the community. If the trial does not work the patient will be no worse off than he is at present...”
As to capacity to consent the RMO said:
“[The applicant]’s paranoid attitudes and beliefs render him incapable upon the subject of treatment with medication...In my view he lacks capacity because of his mental illness but if we take the view expressed in Dr [G]’s report of 17.5.98...that [the applicant] only has a personality disorder and that the paranoia is due to that, then [the applicant] still, I would emphasise, does not have capacity. Whichever way we look at it, he does not believe that he shows paranoia and he therefore does not believe that he needs medication to treat it. He further believes that Broadmoor hospital and I and other doctors before me acting as agents, have sought to obstruct his discharge from the hospital. He is not able to see that medication could be of benefit to him.”
As to the applicant’s heart condition, he said:
“Many patients suffer [angina] attacks from time to time and come to no harm and I have spoken with Dr [X] about this. He told me there is always a chance when [the applicant] suffers an attack of angina it will develop into a heart attack, but that chance is very small.”
The SOAD, in his first witness statement, described a 30 to 40 minute interview with the applicant. He said that he looked at the applicant’s reports, which substantiated his claim that he suffered from a personality disorder but also raised the question of his paranoid thoughts. There was no clear consensus, in his opinion, as to whether these thoughts were a part of his personality disorder or if they related to an underlying illness.
As to the treatment plan, he said:
“I felt that the treatment plan proposed by the RMO was both reasonable and addressed an issue that was preventing the further rehabilitation of the patient. That the patient was experiencing paranoid ideation was apparent both from records made in his clinical notes and from his personal presentation upon examination by myself. Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis, it was reasonable in my view to attempt to relieve [the applicant] of this symptom and would be in [the applicant]’s best interests. It is accepted clinical practice to treat persons with paranoid ideation with antipsychotic medication.”
In his report, dated 12 April 2000, Dr G said the following in relation to diagnosis:
“The prevailing view of psychiatrists who have assessed [the applicant] over the years is that he suffers from a personality disorder, and not from a psychotic mental illness.
[The RMO]’s opinion that [the applicant] has a paranoid psychotic illness does not appear to arise from evidence of new symptoms that have recently emerged, but is based on a further careful review of [the applicant]’s history and presentation. [The RMO]’s conclusion that treatment with antipsychotic medication would help [the applicant] progress after many years in Broadmoor was reached in good faith and with concern for [the applicant]’s welfare.
In my view the basis for arguing that [the applicant] suffers from a paranoid psychotic illness, or schizophrenic illness is weak and there is inadequate clinical evidence to justify such a diagnosis. There is not a good history of positive psychotic symptoms such as delusional beliefs, abnormal perceptions (e.g. hallucinations) or characteristic abnormalities of thinking and affect. There has not been a gross decline in his level of social functioning indicative of chronic psychosis. The past observations noted by [the RMO] in his tribunal report (10/12/99) of thought disorder and emotional incongruity have not been sustained and are certainly not present in [the applicant]’s current presentation. The persistent characteristics of irascibility, explosive anger, poor judgment and suspiciousness are typical of a personality disorder of a paranoid type. There should be particular caution about inferring that [the applicant]’s beliefs about Broadmoor Hospital amount to delusions. They do not have the fixed, incorrigible form of delusions. The content of some of his ideas, namely about the motivation of hospital staff, is in my view misguided and wrong, but it is psychologically understandable, given his experience, personality and the context of long term detention, and it is not wholly irrational...”
As to medication, he said;
“In my view it was not appropriate under all the circumstances to administer antipsychotic medication forcibly to [the applicant]. In particular, I believe that there were significant medical risks associated with forcible medication under restraint in his case.
Antipsychotic medication is generally appropriate and beneficial in the treatment of psychotic illness but generally not in the treatment of personality disorder. The likelihood that antipsychotic medication would modify [the applicant]’s personality characteristics and help him become more relaxed and amenable was low in my opinion...
The risks and adverse effects of antipsychotic medication in [the applicant]’s case included his medical history and his psychological reactions to the treatment. He was an elderly man with ischaemic heart disease. He had consistently been opposed to taking anti-psychotic medication...
It was foreseen that antipsychotic medication would probably have to be given forcibly under restraint. [The applicant] had indicated that he would physically resist. It is known that sudden cardiac death can occasionally occur when patients are given medication under restraint. This is recognised as a special risk associated with restraint that does not apply when antipsychotic mediation is given in a normal way. The position is summarised in a Report for the Royal College of Psychiatrists ‘The Association between Antipsychotic Drugs and Sudden Death’, published in 1997 [“the College Report”].
In weighing up the reasonableness of the decision to forcibly medicate [the applicant] under restraint the two principal concerns are his adverse medical history and the equivocal evidence of medical illness...I do not think that forcible administration of antipsychotic medication under restraint was appropriate or justified.”
On 18 May 2000 the High Court refused an application, by the applicant, for an order that the RMO, the SOAD and Dr G attend the substantive judicial review hearing for cross-examination on their witness statements. On 2 October 2000, the date of the coming into force of the Human Rights Act 1998 (“the 1998 Act”), the applicant was granted permission to appeal this refusal to the Court of Appeal.
In the meantime, the SOAD withdrew his authorisation for the treatment. However, the RMO remained of the view that the applicant required anti-psychotic medication and intended to seek a further SOAD certificate to that end unless precluded from doing so by the courts.
On 18 October 2001 the Court of Appeal allowed the applicant’s appeal and held that cross-examination would be appropriate in this case.
Lord Justice Simon Brown found, referring to paragraphs 82-83 of the Herczegfalvy v. Austria judgment (of 24 September 1992, Series A no. 244), that a court must inevitably reach its own view both as to whether the applicant was indeed incapable of consenting (or refusing consent) to the treatment and, depending upon the conclusion on that issue, as to whether the proposed forcible administration of such treatment would threaten his life and so be impermissible under Article 2 of the Convention, would be degrading and so impermissible under Article 3 and would not be justifiable as both necessary and proportionate under Article 8, given the extent to which it would invade the appellant’s right to privacy.
He noted that the “super-Wednesbury test” which had been applied in judicial review cases involving Article 8 rights had been found by the European Court of Human Rights to be inadequate (Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 129-139, ECHR 1999VI) and he could see no basis upon which an approach disapproved of in the context of homosexuality in the armed forces could be acceptable in the context of forcibly treating mental patients particularly as the case raised a “real question under Article 3”.
He went on to point out that if the applicant was considered to have the capacity to refuse consent to the treatment, it was difficult to suppose that he should nevertheless be forcibly subjected to it despite the RMO’s views: the impact on the applicant’s rights to autonomy and bodily inviolability was immense and its prospective benefits (not least given his extreme opposition) appeared “decidedly speculative”. Moreover, even if he was not capable of consenting, the court would need to be satisfied (in the language of the Herczegfalvy judgment) that the medical necessity had been “convincingly shown to exist ... according to the psychiatric principles generally accepted at the time.”
Accordingly, Lord Justice Simon Brown concluded that what would be required on a substantive challenge to future treatment would be a “full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists.”
Finally, he did not think that Article 14 added anything to the debate. As to Article 6 of the Convention, he stated:
“If I am correct in having concluded that the [applicant] on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts, then plainly the requirements of Article 6 are satisfied: the Administrative Court [on an application for judicial review] will conduct a merits review on the evidence.”
Lord Justice Brooke and Lady Justice Hale also allowed the appeal. On the question of the level of review, Lady Justice Hale had regard to Articles 3 and 8 of the Convention and found that:
“Whatever the position before the [1998 Act], the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under Article 3 or Article 8. Super-Wednesbury is not enough. The [applicant] is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out: i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent ‘having regard to the likelihood of its alleviating or preventing a deterioration of his condition’. If they are, in other words if [the RMO] rather than [Dr G] is right, then I would hold that this treatment could be given to him.
This is not the same as saying that every patient is entitled to such a hearing in advance. Once again the analogy with arrest holds good. The RMO and SOAD are not determining his civil rights and liabilities. They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist. They do not have to go to court for advance authorisation (although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one). But once a situation exists in which the treatment can be scrutinised, whether before or after the event, then that scrutiny should take place.”
Dr G prepared a supplementary report dated 27 October 2000 as to the applicant’s capacity to consent. Dr G analysed the applicant’s ability to use information and weigh it in the balance in making his decision. He considered that there were four aspects to the applicant’s opposition to the treatment, two of which were rational, one of which was partially rational and partly based on lack of insight, and the last of which was manifestly wrong and based on paranoid suspicion about the motivation of his RMO. Taking this into account Dr G reached the ‘overall judgment’ that the applicant had capacity to consent.
The RMO prepared a second witness statement, dated 23 November 2000 in response to Dr G’s original and supplementary reports. He pointed out that the conclusion of the College Report, referred to by Dr G was that:
“There are insufficient epidemiological data to prove that sudden death is more likely among people being treated with antipsychotic medication than it is among the general population. However, there are no data to prove that there is no causal connection between the use of this group of drugs and sudden death.”
He also stressed that he had given the applicant depot medication rather than a preparation which would have acted immediately. As a result, during the short period where the applicant was being given the injection and was suffering the angina attack the amount of antipsychotic drugs in his blood stream would have been negligible. There was no question of the drugs causing the angina attack. That was caused by the over-exertion.
He obtained evidence from Prof B, the convenor of the group which wrote the College Report, and from Dr D, who sat on the review panel for the said report, both of whom supported his interpretation of the report. Dr D in his letter of reply apparently stated that the risk of sudden death was very small.
As to capacity the RMO said:
“[It] is clear that [the applicant] is not able to believe treatment information which I give him because he is very suspicious about my motives, he sees me as part of a corrupt system in which individuals, including doctors, have no compunction about telling lies in order to support the system and protect themselves...
I believe that this is a considerable impairment of [the applicant]’s ability to “weigh” information and balance risks and needs in order to come to a reasonable decision, in addition to his difficulty in believing information about his mental condition and treatment needs. This is caused by his suspiciousness and anxiety which derive directly from his mental condition.
I am entirely satisfied that [the applicant] does not have capacity with respect to decisions about the treatment of his mental condition.”
The SOAD also prepared a second witness statement, dated 15 November 2000, in which he said that he had been aware of the applicant’s heart condition from the records but that he had considered that the potential benefits of the treatment outweighed the risks.
Since the Court of Appeal hearing there have been no further attempts to impose compulsory treatment and the applicant has not attempted to progress the judicial review proceedings to a substantive hearing.
Detention in a psychiatric institution pursuant to the 1983 Act does not, of itself, authorise treatment. The individual’s consent must be obtained or, if that consent is not forthcoming, Part IV of the 1983 Act applies. Section 63 provides that the treatment shall be given for the mental disorder from which the individual suffers: without compliance with this condition, the treatment is unlawful. Sections 57 and 58 of the 1983 Act then go on to provide a range of additional safeguards graded to reflect the severity of the various treatments which may be contemplated.
Section 58, the relevant section for the present case, applies to two different forms of treatment (electronic convulsive therapy and “long-term medication”). Both can only be applied on the basis of conditions set out in section 58. In the case of long-term medication, the conditions are set out in section 58 (3) and (4):
“(3) Subject to section 62 below [which makes provision for urgent treatment], a patient shall not be given any form of treatment to which this section applies unless
(a) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being [the RMO]) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.
(4) Before giving a certificate under subsection 3(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner ...”
The “registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State” referred to in section 58 (3) above is commonly referred to as an SOAD. The Mental Health Act Code of Practice (“the Code”) provides guidance as to his role. Paragraphs 16.20 -22 of the Code state that:
“The role of the SOAD is to provide an additional safeguards to protect that patient’s rights...The SOAD acts as an individual and must reach his or her own decision as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition....The SOAD should seek professional opinion about the nature of the patient’s disorder and problems, the appropriateness of various forms of treatment including that proposed, and the patient’s likely response to different types of treatment. The SOAD should take into account any previous experience of comparable treatment of a similar episode or disorder. The SOAD should give due weight to the opinion, knowledge and skill of those consulted.”
Paragraph 16.26 of the Code describes the SOAD’s obligations during a visit:
“During the visit the SOAD should
a. in the case of a treatment under section 58, satisfy him or herself that the patient’s detention papers are in order;
b. interview the patient in private if possible. Others may attend if the patient and SOAD agree, or if it is thought that the doctor would be at significant risk of physical harm from the patient.
c. discuss the case with the patient’s RMO face to face, or on the telephone in exceptional circumstances;
d. consult with two other persons professionally concerned with the patient’s care as statutorily required...The SOAD should be prepared, where appropriate, to consult a wider range of persons professionally concerned with the patient’s case than those required by the Act, and, with the patient’s consent, the patient’s Nearest Relative, family, carer or advocates.”
Section 139 of the 1983 Act provides, in so far as relevant, as follows:
“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act ... unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.”
The Court of Appeal reconsidered its judgment in this case in the subsequent case of R (N) v M and others [2002] EWCA Civ 1789. The claimant in that case was also a restricted mental patient detained in hospital, who refused to consent to a treatment plan which included the administration of anti-psychotic medication by injection for her psychotic illness. The claimant obtained a report from a psychiatrist who concluded that she was unlikely to be psychotic and therefore should not be given anti-psychotic medication. An SOAD issued a certificate under section 58(3)(b) of the 1983 Act stating that the claimant was suffering from either paranoid psychosis or severe personality disorder and required regular anti-psychotic treatment. He considered that the claimant did not have the capacity to consent.
The claimant’s application for judicial review was dismissed. The High Court concluded in the light of the medical evidence that the claimant did not have capacity to consent and that the treatment was necessary in her best interests. It considered that the medical necessity for treatment had been convincingly shown in accordance with the test in the Herczegfalvy case.
The Court of Appeal dismissed the appeal. It approved the High Court’s application of the Herczegfalvy test. In addition, it stated that cross-examination should not always be necessary because, in many cases, it would be clear whether medical necessity has been convincingly shown without having to hear oral evidence. It stressed that the Court of Appeal’s decision in the present case should not be used as a charter for routine applications for cross-examination in human rights cases. It pointed out that the court’s role was “essentially one of review”.
On 3 January 2000 the Working Party of the Steering Committee on Bioethics of the Council of Europe (“the Working Party”) published a consultation paper on the protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment (“the White Paper”).
As to the procedures for taking a decision of involuntary placement or treatment, the White Paper said the following (at § 4.2-4.3):
“[T]he decision confirming involuntary placement or treatment should be taken by a relevant independent authority, which should base its decision on valid and reliable standards of medical expertise.
The Working Party had considered at length the notion of “relevant independent authority”...In the opinion of the Working Party, the relevant question was the independence of the body or authority which takes the decisions of placement, the independence of which could be verified by the fact that it was a different authority than the one which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever. It was thus noted that, in some countries, the relevant authority may be a doctor authorised to take such a decision with a psychiatric establishment, for example, who should be independent in relation to the doctor who proposed the placement measure...”
As to involuntary treatment it said (at § 6.3-4)
“The representative of a person should be consulted but where he/she refuses consent to treatment for the person concerned, it should be possible to approach a court or court-like body with the power to respect or overturn the decision of the representative.
The Working Party was also of the opinion that a written scheme of involuntary treatment must be drawn up, if possible, in consultation with the patient, his or her representative or, where there was no representative, submitted to an independent authority for decision. The scheme should be reviewed regularly and open to modification at all times in consultation with the patient, his or her representative or an independent authority, as appropriate. Should the patient not consent to the said scheme, he or she should be able to appeal to a court or court-like body.”
This White Paper led to Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with a mental disorder (“the Recommendation”), adopted by the Committee of Ministers on 22 September 2004. When adopting the decision the Permanent Representative of the United Kingdom indicated that he reserved the right of his Government not to comply with the Recommendation as a whole.
Article 16 of the Recommendation, provides as follows:
“Article 16 – Scope of chapter III
The provisions of this chapter apply to persons with a mental disorder:
i. who have the capacity to consent and are refusing the placement or treatment concerned; or
ii. who do not have the capacity to consent and are objecting to the placement or treatment concerned.”
Articles 18 to 20 (which are all within chapter III) provide as follows:
“Article 18 – Criteria for involuntary treatment
A person may be subject to involuntary treatment only if all the following conditions are met:
i. the person has a mental disorder;
ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons;
iii. no less intrusive means of providing appropriate care are available;
iv. the opinion of the person concerned has been taken into consideration.
Article 19 – Principles concerning involuntary treatment
1. Involuntary treatment should:
i. address specific clinical signs and symptoms;
ii. be proportionate to the person’s state of health;
iii. form part of a written treatment plan;
iv. be documented;
v. where appropriate, aim to enable the use of treatment acceptable to the person as soon as possible.
2. In addition to the requirements of Article 12.1 above, the treatment plan should:
i. whenever possible be prepared in consultation with the person concerned and the person’s personal advocate or representative, if any;
ii. be reviewed at appropriate intervals and, if necessary, revised, whenever possible in consultation with the person concerned and his or her personal advocate or representative, if any.
3. Member states should ensure that involuntary treatment only takes place in an appropriate environment.
Article 20 – Procedures for taking decisions on involuntary placement and/or involuntary treatment
Decision
...
2. The decision to subject a person to involuntary treatment should be taken by a court or another competent body. The court or other competent body should:
i. take into account the opinion of the person concerned;
ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted.
However, the law may provide that when a person is subject to involuntary placement the decision to subject that person to involuntary treatment may be taken by a doctor having the requisite competence and experience, after examination of the person concerned and taking into account his or her opinion.
3. Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25.
Procedures prior to the decision
4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards.
5. That doctor or the competent body should consult those close to the person concerned, unless the person objects, it is impractical to do so, or it is inappropriate for other reasons.
6. Any representative of the person should be informed and consulted.”
‘Competent body’ is defined by Article 2.3 of the Recommendation to mean:
“an authority, or a person or body provided for by law which is distinct from the person or body proposing an involuntary measure, and that can make an independent decision.”
Article 25 of the Recommendation, which is also within chapter III, provides as follows:
“Article 25 – Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment
1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right:
i. to appeal against a decision;
ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals;
iii. to be heard in person or through a personal advocate or representative at such reviews or appeals.
2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals.
3. Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court.
4. If the person has a representative, the representative should have access to all the materials, and have the right to challenge the evidence, before the court.
5. The person concerned should have access to all the materials before the court subject to the protection of the confidentiality and safety of others according to national law. If the person has no representative, he or she should have access to assistance from a personal advocate in all procedures before a court.
6. The court should deliver its decision promptly. If it identifies any violations of the relevant national legislation it should send these to the relevant body.”
7. A procedure to appeal the court’s decision should be provided.”
Article 28 (which is in chapter V) provides, in so far as relevant:
“1. Treatment for mental disorder that is not aimed at producing irreversible physical effects but may be particularly intrusive should be used only if no less intrusive means of providing appropriate care is available. Member states should ensure that the use of such treatment is:
i. subject to appropriate ethical scrutiny;
ii. in accordance with appropriate clinical protocols reflecting international standards and safeguards;
iii. except in emergency situations as referred to in Article 12, with the person’s informed, written consent or, in the case of a person who does not have the capacity to consent, the authorisation of a court or competent body;
iv. fully documented and recorded in a register.”


ITEMID: 001-95873
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NAZAROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1980 and lives in Dushanbe, Tajikistan. He is currently detained in remand prison IZ-33/1 in Vladimir.
6. At the material time the applicant was pursuing postgraduate studies in Vladimir, Russia.
7. On 4 April 2004 an investigator of the Department of Interior of the Vladimir Region instituted criminal proceedings against the applicant under Article 228 § 4 of the Russian Criminal Code (purchase or possession of drugs in large quantities). On the same day the applicant was arrested.
8. On 6 April 2004 the Frunzenskiy District Court of Vladimir (“the district court”) ordered the applicant's placement in custody reasoning that he had been charged with a serious crime and that, if he remained at liberty, he could have absconded or interfered with the investigation or continued his unlawful activities.
9. On 3 June 2004 the district court extended the term of the applicant's detention until 4 July 2004.
10. On 2 July 2004 the district court extended the term of the applicant's detention until 4 August 2004 for the reason that the investigators needed to take certain steps and that the applicant was charged with a serious crime and, once released, could have absconded, continued unlawful activities and impeded the investigation.
11. On 5 August 2004 the investigators transferred the file in the applicant's criminal case to the district court.
12. On 16 August 2004 the district court scheduled a hearing on 27 August 2004 and ruled that the preventive measure applied to the applicant remain unchanged.
13. On 27 August 2004 the hearing was postponed until 28 September 2004 due to the absence of witnesses.
14. On 28 September 2004 at counsel for the applicant's request the district court decided to return the case file to the prosecutor's office for further investigation. Ten days later the case was transferred to the investigators.
15. On 18 November 2004 the prosecutor's office transferred the case to the district court. On 22 November 2004 the district court received the case file.
16. On 30 November 2004 the district court scheduled a hearing for 9 December 2004 and ruled that the preventive measure remain unchanged.
17. On 8 December 2004 the hearing was postponed until 17 January 2005 upon counsel for the applicant's request.
18. On 17 January 2005 the applicant's counsel filed an application for the applicant's release pending trial, arguing that upon arrival of the case file at the district court the term of the detention had been extended in the absence of the parties to the proceedings. On the same date the application was dismissed for the reason that, having received an investigation file, a court had to schedule a hearing and decide on any preventive measure to be applied to a suspect.
19. On 24 January 2005 the applicant's counsel appealed against the ruling of 17 January 2005.
20. On 1 February 2005 the district court extended the term of the applicant's detention until 3 May 2005 for the reason that the applicant had been charged with particularly serious crimes. The applicant's counsel appealed against the decision. He invoked Article 5 § 3 of the Convention and argued, in particular, that the district court had not considered the possibility of applying other preventive measures, such as release on bail, and had not taken into account the applicant's personal circumstances. He emphasised that the applicant had a child of under one year of age, had no previous criminal record, had a permanent job and had positive references.
21. Between 7 February and 22 April 2005 the district court's hearings were postponed on several occasions.
22. On 9 March 2005 the Vladimir Regional Court (“the regional court”) dismissed the applicant's counsel's appeal and upheld the ruling of 17 January 2005.
23. On 22 March 2005 the regional court dismissed the applicant's representative's appeal and upheld the decision of 1 February 2005.
24. On 27 April 2005 the district court extended the term of the applicant's pre-trial detention until 3 August 2005 for the reason that the applicant had been charged with particularly serious crimes.
25. On 28 April 2005 the district court returned the investigation file to the prosecutor's office and noted that the preventive measure applied to the applicant should remain unchanged because the applicant had been charged with particularly serious crimes.
26. On 3 and 11 May 2005 the applicant's counsel appealed against the decisions of 27 and 28 April 2005, respectively.
27. On 19 May 2005 the district court extended the applicant's detention until 12 June 2005 because he had been charged with particularly serious crimes and, if released, could have absconded or continued criminal activities. On 27 May 2005 the applicant's counsel appealed against that decision.
28. On 10 June 2005 the district court extended the term of the detention until 12 July 2005 because the applicant had been charged with particularly serious crimes and, if released, could have absconded, impeded the investigation or continued criminal activities. On 15 June 2005 the decision was appealed against.
29. On 16 June 2005 the regional court upheld the decision of 27 April 2005 on appeal.
30. On 23 June 2005 the regional court upheld the decision of 19 May 2005 on appeal.
31. On 28 June 2005 the regional court upheld the decision of 28 April 2005 on appeal.
32. On 8 July 2005 the district court authorised the applicant's pre-trial detention until 12 August 2005, arguing that the applicant was charged with particularly serious crimes, was a national of another State, could abscond, continue criminal activities and impede the investigation. On 8 July 2005 the applicant's counsel appealed against the decision.
33. On 13 July 2005 the regional court upheld the decision of 10 June 2005 on appeal.
34. On 15 July 2005 the prosecutor's office transferred the case file to the district court. On 20 July 2005 the district court received it.
35. On 1 August 2005 the district court scheduled a hearing in the applicant's criminal case. It also noted that the preventive measure applied to the applicant should remain unchanged, without providing any reasons.
36. On 4 August 2005 the regional court upheld the decision of 8 July 2005.
37. On 8 August 2005 counsel for the applicant appealed against the decision of 1 August 2005. On 9 September 2005 the regional court dismissed the appeal.
38. Between 10 August 2005 and 9 February 2006 the district court rescheduled hearings on eight occasions for various reasons.
39. On 17 January 2006 the district court extended the term of the applicant's pre-trial detention until 20 April 2006 for the following reasons: the criminal case file was particularly complex and voluminous; the applicant had been charged with particularly serious crimes; there were no reasons to change the measure applied. The decision was taken in the presence of counsel; the applicant himself was absent.
40. On 7 March 2006 the regional court upheld the decision of 17 January 2006 on appeal.
41. Between 9 February and 13 April 2006 the district court rescheduled hearings on six occasions for various reasons.
42. On 13 April 2006 the district court sentenced the applicant to three years' imprisonment.
43. On 21 June 2006 the regional court upheld the judgment of 13 January 2006 on appeal.
44. On 6 April 2004 the applicant was placed in custody in remand prison IZ-33/1 in Vladimir (“the remand prison”).
45. While in the remand prison, the applicant was kept in different cells. The number of inmates kept in each cell varied. In particular, cell no. 17 measured approximately 28 sq. m and was equipped with ten bunk beds; eight to fifteen inmates were kept there at the same time as the applicant. Cell no. 43 measured around 28 sq. m, was equipped with eight bunk beds and housed from six to ten inmates. Cell no. 56 measured around 56 sq. m and was equipped with forty-two bunk beds; the number of inmates kept there together with the applicant varied from twenty-five to sixty-six. Cell no. 51 measured 28 sq. m and had twenty-four bunk beds; it housed eight to twenty persons. Cell no. 8 measured 3 sq. m and was equipped with three bunk beds; one to three inmates were kept there.
46. The applicant was not provided with individual bedding. On several occasions he was not allocated an individual sleeping place and the inmates had to take it in turns to sleep.
47. In virtually every cell bunk beds were attached to the walls in three rows. In each cell there was a lavatory pan placed next to the dining table and bunk beds; lavatory pans were not cleaned properly and gave off an unpleasant odour.
48. The cells were not equipped with a ventilation system. As a result, in summer it was very hot and humid inside, while in winter it was very cold. The cells were poorly lit. However, a light was switched on day and night. There were cockroaches, bugs, mice and rats in the cells.
49. The inmates were not provided with toilet paper, toothpaste or cleaning products for sinks and lavatory pans. The applicant was only allowed to have a shower once a week.
50. There were no taps with running hot water in the cells. The remand prison administration provided the inmates with one bucket of hot water per cell twice a day. The inmates were not provided with drinking water and were obliged to drink tap water. The quality of food served in the remand prison was poor.
51. The inmates were escorted for a walk in a special area covered with an iron roof. The walks only lasted about half an hour, although they should have been at least one-hour long.
52. The applicant's counsel pointed out in his applications for release lodged with district and regional courts that the applicant was being kept in poor conditions. His assertions remained unanswered.
53. Between 13 April and 25 May 2004, as well as between 4 and 18 June 2004 the applicant was kept in cell no. 17 measuring 33.4 sq. m. The number of inmates kept there at the same time as the applicant varied from six to ten.
54. Between 18 June and 2 August 2004 the applicant was kept in cell no. 43 measuring 16.58 sq. m. The number of inmates kept there at the same time as the applicant varied from six to eight.
55. Between 2 August and 30 September 2004, as well as between 20 January and 28 March 2005 the applicant was kept in cell no. 56 measuring 58.03 sq. m. The number of inmates kept there at the same time as the applicant varied from twenty-nine to forty-two.
56. Between 30 September and 24 November 2004 the applicant was kept in cell no. 51 measuring 32.48 sq. m. The number of inmates kept there at the same time as the applicant varied from sixteen to twenty-three.
57. Between 14 and 20 January 2005 the applicant was kept in cell no. 8 measuring 12.97 sq. m. The number of inmates kept there at the same time as the applicant varied from one to three.
58. Between 28 March and 4 April 2005 the applicant was kept in cell no. 50 measuring 47.35 sq. m. The number of inmates kept there at the same time as the applicant varied from twenty-four to thirty-three.
59. Between 4 April and 15 December 2005 the applicant was kept in cell no. 19 measuring 23.6 sq. m. The number of inmates kept there at the same time as the applicant varied from five to twelve.
60. Between 14 and 27 June 2006 the applicant was kept in cell no. 12 measuring 54.6 sq. m. The number of inmates kept there at the same time as the applicant varied from twelve to eighteen.
61. The applicant was at all times provided with an individual bunk bed and bedding. The bunk beds were not attached to the walls in three rows.
62. The remand prison was not overrun by rodents or insects. Every cell was equipped with the mandatory ventilation system in working condition. The applicant had free access to drinking water. He was supplied with soap. As from 2 August 2005 the applicant was also supplied with toothpaste and toilet paper. Inmates were provided with hot water twice a day and could request a more frequent supply if needed. The applicant had his own portable boiling device. He was allowed to take a shower once a week.
63. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98 of the Code of Criminal Procedure (CCP)). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (обязательство о явке) (Article 112 of the CCP).
64. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97 of the CCP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the CCP).
65. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1 of the CCP).
66. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3 of the CCP). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9 of the CCP).
67. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3 of the CCP).
68. If the suspect is being kept in detention pending trial, the trial court should schedule a preliminary hearing or a trial session within fourteen days from the date of the arrival of the case file from the prosecutor (Article 227 § 3 of the CCP).
69. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
70. In their Ruling no. 4-P of 22 March 2005 the Constitutional Court of the Russian Federation examined compatibility of certain provisions of the Code of Criminal Procedure with the Constitution of the Russian Federation. The Constitutional Court found that the provisions concerning detention on remand upon transfer of a criminal case from a prosecutor to a trial court complied with the Constitution. However, their practical interpretation by the courts might have contradicted their constitutional meaning. The Ruling, in so far as relevant, reads as follows:
“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released ...
These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages.
Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [imposing it]...
[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the preventive measure applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term for which the preventive measure has been set.
The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Proceedings, [must] ask the court to extend the period of detention.”
VIOLATED_ARTICLES: 5


ITEMID: 001-68516
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF YAKOVLEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1954 and at the material time lived in Katav-Ivanovsk in the Chelyabinsk Region. The applicant now lives in the village of Sanovka in the Ryazan Region.
9. In 1987 the applicant took part in the clean-up works at the Chernobyl nuclear accident site. On 23 March 1993 he was granted the disability status of the second category (“unfit for work”). In June 1994 the classification of his disability was changed to the third category (“fit for light work”).
10. On 26 December 1997 the applicant brought an action against the Medical and Social Expert Examination Service of the Chelyabinsk Region. He sought to reverse the 1994 decision on reclassification of his disability.
11. On 31 March 2000 the Tsentralniy District Court of Chelyabinsk dismissed the applicant’s action and confirmed the lawfulness of the Medical Service’s decision.
12. The applicant appealed to the Chelyabinsk Regional Court. He complained that the proceedings before the district court had been a “travesty of justice” and that his arguments had not been given due consideration.
13. On 31 July 2000 the Chelyabinsk Regional Court upheld the judgment of 31 March 2000. It appears from the Regional Court’s judgment that the matter was determined on the basis of the case-file with the presiding judge acting as the rapporteur. Neither party was present at the appeal hearing.
14. On 4 August 2000 the applicant received a summons for the hearing before the Regional Court that had taken place on 31 July 2000. The summons was dated 21 July 2000 and despatched on 31 July 2000, according to the postmark. It contained a printed clause indicating that parties’ attendance was not required.
15. The applicant submitted, and the Government did not contest it, that he had only received the judgment of the Regional Court on 16 November 2000.
16. Article 106 of the RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time) provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by mail or by courier and served on the person who was a party to the case.
Article 144 required that civil cases be heard in a court session with mandatory notification to all parties to the case.
Pursuant to Article 157, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the hearing had to be adjourned.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23952
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BALOGH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Andrej Balogh, is a Hungarian national who was born in 1960 and lives in Budapest.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 September 1992 the applicant was dismissed from work. Subsequently, and before the end of 1992, he filed an action with the Budapest Labour Court to have the dismissal decision annulled.
On 21 September 1993 the Labour Court rejected his action. On 24 March 1995 the Budapest Regional Court dismissed his appeal.
In the course of subsequent review proceedings, the Supreme Court quashed the Regional Court's decision on 16 January 1996 and remitted the case to the latter court. The Supreme Court held in its ruling that the taking of evidence in the case had been insufficient.
In the resumed proceedings, the Regional Court, on 17 June 1998, gave an interim judgment. It amended the Labour Court's judgment and held that the applicant's dismissal had been unlawful.
The proceedings concerning the applicant's pecuniary claims were resumed before the Labour Court. On 27 May 1999 the Labour Court awarded the applicant 330,000 Hungarian forints (HUF) plus accrued interest by way of severance pay and HUF 7,181,000 plus accrued interest for outstanding wages. The judgment was served on the applicant on 24 September 1999. In the absence of any appeal, the judgment became final on 11 October 1999.
The Government have submitted the avis de réception attached to the letter containing the decision. They maintain that the handwritten date of service on the avis de réception is 24 September 1999.


ITEMID: 001-22640
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: APPOLONOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Vladimir Mikhaylovich Appolonov, is a Russian national. He was born in 1925 and lives in Kazan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant brought proceedings against the Government and the Ministry of Finance. He claimed that the value of his personal savings, which he had deposited with the Savings Bank, had significantly dropped following economic reforms, and that the State had not properly discharged its obligation to revalue the deposits in the Savings Bank (Сберегательный банк) in order to offset the effects of inflation, even though it had assumed that obligation under the Law on Revaluation and Protection of the Savings of Citizens of the Russian Federation enacted on 10 May 1995 (Федеральный закон «О восстановлении и защите сбережений граждан Российской Федерации», hereinafter – “Savings Act”).
On 17 June 1999, the Presninskiy District Court of Moscow (Пресненский районный суд г. Москвы) dismissed the applicant’s case, having found that the current legislation did not create a right to compensation as claimed by the applicant.
On appeal, this finding was confirmed by the Moscow City Court (Московский городской суд) on 22 September 2000. It was held, inter alia, that the applicant had benefited from preliminary compensation in respect of his savings pending the launch of the full-scale compensation envisaged in the Savings Act.
On 28 January 2000, the Ministry of Finance informed the applicant that his devalued savings would be converted into special bonds as set out in the Savings Act only after all the necessary subordinate legislation had been passed.
By Section 1 of the Savings Act, the State guarantees the restoration and preservation of the value of monies deposited with the Savings Bank before 20 June 1991. The Act recognises guaranteed savings as an internal State debt secured by State property and assets at the Government’s disposal. It provides that savings shall be converted into special State bonds guaranteeing a purchasing power equivalent to that of the national currency in 1990. Section 12 provides that the conversion shall be carried out on the basis of relevant federal laws.
Pending full implementation of the Savings Act, several presidential decrees and governmental orders have been passed to enable certain socially vulnerable groups of the population to receive partial reimbursement of their savings, e.g. Presidential Decrees no. 733 of 16 May 1996 and no. 1269 of 2 December 1997, Government Regulations no. 677 of 30 June 1998, no. 553 of 20 May 1999, no. 352 of 19 April 2000, no. 222 of 19 March 2001, no. 152 of 13 March 2002.