ITEMID: 001-88972
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RENOLDE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect)
JUDGES: Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1962 and lives in Chatou.
6. The applicant is the sister of Joselito Renolde, who was born on 17 August 1964 and died on 20 July 2000 after hanging himself in a cell in Bois-d’Arcy Prison, where he was in pre-trial detention. They are members of a family of Travellers.
7. Joselito Renolde was separated from his former partner, with whom he had two children.
8. On 12 April 2000 he was placed under investigation by the investigating judge at the Meaux tribunal de grande instance for the armed assault on 8 April 2000 of his former partner and their thirteen-year-old daughter, occasioning total unfitness for work for more than eight days, and also for criminal damage and theft.
9. On the same day Joselito Renolde was placed in pre-trial detention in Meaux Prison. A medical and psychological report ordered by the investigating judge, submitted on 19 July 2000, found that he had retardations and deficits in the cognitive sphere; that, having a neurotic structure, he possessed immature and infantile defence mechanisms and several paranoid traits; and that, as he was incapable of mentalising, all his violence was expressed on a physical level.
10. On 30 June 2000 he was transferred to Bois-d’Arcy Prison to be closer to his family. His personal file described him as a normal person and mentioned sedative treatment.
11. On 2 July 2000 Joselito Renolde attempted to commit suicide by cutting his arm with a razor and was treated at the infirmary. The warder on duty found him to be somewhat “disturbed” and called in the Rapid Crisis Intervention Team (Équipe Rapide Intervention de Crise – “ERIC”) from the psychiatric unit at Charcot Hospital after Joselito Renolde had claimed to be hearing voices. The duty officer also observed three other cuts on his forearm and noted in the file that he had forced his way out of his cell.
12. The emergency report drawn up by the ERIC team stated:
“Patient who made an SA [suicide attempt] by cutting his forearm with a razor. This act took place in the context of a hallucinatory delusional state observed since yesterday by the prison duty staff. On being interviewed, the patient displays incoherent, dissociative speech, a listening attitude, mentions verbal hallucinations, [illegible], persecutory delusional statements ... The patient mentions his psychiatric history, says that he has already been admitted to hospital and has already taken Tercian ... Conclusion: acute delirious episode.”
13. The ERIC team accordingly prescribed antipsychotic neuroleptic treatment, later adding an anxiolytic. The infirmary staff supplied the medicine to Joselito Renolde twice a week from 2 July 2000, without checking that he actually took it.
14. From 3 July 2000 onwards, Joselito Renolde was treated by the Regional Medical and Psychological Service (service medico-psychologique regional – “the SMPR”) and placed in a cell on his own under special supervision, which took the form of more frequent patrols. He was seen by the SMPR on 3, 4, 5, 7, 8, 10, 13, 18, 19 and 20 July 2000.
15. On 4 July 2000 a trainee warder reprimanded him for throwing a piece of bread out of the window. Joselito Renolde threatened her with a fork, saying:
“I’ll see you outside and we’ll see who has the power.”
He then threw a stool in her face. The warder was certified unfit for work for five days.
16. During the inquiry into that incident, Joselito Renolde made incoherent statements and denied what had happened. The inquiry report stated: “very disturbed prisoner who had already wanted to go to the SMPR at 7.50 a.m., received by the SMPR in the afternoon”. As to the action to be taken, the report stated:
“Very disturbed prisoner, being monitored by the SMPR, will need to go before the disciplinary board.”
17. On 5 July 2000 Joselito Renolde was interviewed by the disciplinary board and spoke coherently. He stated that he had been asleep because of his medication but that the warder would not leave him alone; he denied that he had thrown a stool at her or threatened her with a fork but admitted having thrown a piece of bread outside.
18. The disciplinary board found it established that physical violence had been used, entailing disciplinary offences punishable under Article D. 2491 and Article D. 2492, paragraph 1, of the Code of Criminal Procedure. Joselito Renolde was given a penalty of 45 days in a punishment cell, which he began serving on 5 July 2000.
19. On 6 July 2000 he wrote a letter to his sister in which he compared his cell to his tomb and said that he was “at the limit” and taking tablets. He explained to her that he would be spending 45 days confined within four walls, with no television or music. In a drawing he depicted himself as crucified on a tomb bearing his name, next to the bed in his punishment cell, and ended his letter as follows:
“Lito [his nickname] is a sad story, you know, I don’t know if my life is worth living, with all the troubles I have ... and yet I haven’t hurt anyone. You know, I’m alive and I don’t even know why. I believe in heaven, maybe it’s better up there. You know, I would like to sleep and never wake up again. What is keeping me going are the little ones at home, because I love them.”
20. The letter was sent on 10 July 2000 (date of the postmark).
21. In a letter of 12 July 2000, received at the investigating judge’s registry on 17 July 2000, Joselito Renolde’s lawyer asked the judge to order a psychiatric examination of her client in order to ascertain whether his mental state was compatible with detention in a punishment cell. The letter from the lawyer read as follows:
“... I met Mr Joselito Renolde in Bois d’Arcy Prison, in a punishment cell where he has been placed for 45 days.
Mr Joselito Renolde’s mental state prompted the present request.
I asked Mr Joselito Renolde to describe the events that led to disciplinary proceedings being instituted against him. He stated, among other things: ‘I was hearing voices ... It was my family ... I wake up in the morning, I say it’s daylight ... They tell me it isn’t ...’ etc. ...
I was unable to establish a coherent dialogue with Mr Joselito Renolde.
Having regard to this state of affairs and the worsening of his condition (I would also point out that, unless I am mistaken, Mr Joselito Renolde has been admitted to a psychiatric institution in the past), I consider it essential that he should be seen as soon as possible by a psychiatric expert appointed by you.
The purpose of the present request is therefore to obtain a psychiatric examination of Mr Joselito Renolde, the expert being instructed, in particular, to determine whether Mr Renolde’s mental or physical state is compatible with pre-trial detention as currently being served, in particular placement in a punishment cell, and whether he should undergo appropriate treatment in view of his condition.”
22. According to information supplied by the Government, the request for an examination was referred on 19 July 2000 by the investigating judge to the public prosecutor, who stated on the same day that he had no objection to such a measure.
23. Joselito Renolde was supplied with medication for the last time on 17 July 2000. He was handed several days’ medication, with no supervision of whether he actually took it.
24. During the night of 19 to 20 July 2000, an intervention report noted that at 4.25 a.m. Joselito Renolde was not asleep, was tapping at the bars of his cell and wanted to go out.
25. On 20 July 2000, between 11 a.m. and noon, a nurse from the psychiatric service met him and told him that someone from social services would be coming to see him later. On leaving his cell for exercise at 3 p.m., he asked to see a doctor. At 4 p.m. he returned to his cell.
26. At 4.25 p.m. the warder on patrol found him hanging from the bars of his cell with a bed sheet. A doctor and two nurses from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) arrived at 4.30 p.m., followed by the ambulance service and fire brigade at 4.45 p.m. Despite efforts to revive him, Joselito Renolde was pronounced dead at 5 p.m.
27. After being called to the scene at 4.50 p.m., the police conducted initial inquiries and interviews. The Versailles public prosecutor visited the scene at 7 p.m. and a preliminary investigation was opened.
28. On 21 July 2000 a forensic medical examiner conducted an autopsy and reached a finding of suicide by hanging.
29. An expert toxicological report, ordered by the public prosecutor on 21 July 2000, found that no medicinal substances were present in Joselito Renolde’s body, other than paracetamol.
30. The warders who had been present on the scene, the medical staff and the prisoners placed in solitary confinement in neighbouring cells were questioned.
31. Mr R., a warder, stated that on the day of the incident Joselito Renolde had gone out for exercise without any trouble and that he had been seen that same morning by the medical and psychological service, who had not issued any instructions concerning him. Mr R. added:
“Mr Renolde told us that he could hear his son speaking to him at night. He explained that people wanted to come into his cell.”
32. One of the prisoners in solitary confinement in a neighbouring cell, Mr N., stated:
“During our discussions, he told me that he felt anxious and down as he was not used to being alone, and he would speak to God, asking him what he was doing here, and would start to cry ... I called out to him but he did not reply because he was crying.”
33. Mr R., a warder, mentioned that on 2 July he had had to call the ERIC team because Joselito Renolde had been making strange comments, saying that he could hear his son calling him and telling him that he wanted to kill him. Mr R. added:
“Objectively, I believe that this person was not at ease with himself. I know that he was on medication because he was being monitored by the SMPR. It should be pointed out that Renolde was under special supervision because he was being monitored by the psychiatric service.”
34. Dr L., the psychiatrist in charge of the SMPR, confirmed that the SMPR had supplied Joselito Renolde with medication for several days in his cell twice a week, on Tuesdays and Fridays, without the nurses checking whether he actually took it. He pointed out that, where a prisoner’s mental state required regular attention, the doctor ordered the medication to be taken daily in the SMPR in the presence of the nurses. In Joselito Renolde’s case, he stated that the members of his service had not “at any time noted any factors suggesting that the medication should be taken at shorter intervals, or in the service itself”. He added that checking whether all medication prescribed by the SMPR was actually taken was impossible and “contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment”.
35. Mr B., a psychiatric nurse, stated that Joselito Renolde had not displayed an attitude suggesting that he might not take his medication.
36. Ms H., the psychiatric nurse who had seen him the morning before his suicide, stated that he had not seemed particularly depressive to her and that no comments of a depressive nature had aroused her attention that day.
37. Joselito Renolde’s former girlfriend, who was likewise questioned, stated that he had been admitted to psychiatric institutions on several occasions.
38. On 8 September 2000 the public prosecutor applied for a judicial investigation to be opened in respect of a person or persons unknown for manslaughter, and an investigating judge of the Versailles tribunal de grande instance was appointed to that end. On 15 September 2000 Joselito Renolde’s brothers and sisters, including the applicant, applied to join the proceedings as civil parties.
39. On 16 October 2000 the investigating judge appointed two psychiatric experts, Dr G. and Dr P., instructing them to inspect Joselito Renolde’s medical records; to analyse their contents and to determine whether the condition from which he suffered was compatible with detention in a punishment block, whether the absence of medicinal substances in his blood was normal, whether it was to be concluded that he had deliberately refrained from taking his medication and whether such an interruption of treatment had influenced his behaviour, and in particular his suicide; to clarify the reason for the ERIC team’s intervention on 2 July 2000; to interview, if necessary, the SMPR psychiatrist and nurses and the members of the ERIC team; and to determine whether Joselito Renolde’s suicide had been foreseeable in view of his conduct and state of health.
40. The experts inspected the file on the criminal proceedings and Joselito Renolde’s medical records. On 29 March 2001 they submitted their report, concluding as follows:
“The medical records as a whole and the interviews of those who came into contact with Mr Renolde indicate the following:
– He had acute psychotic disorders at the time of his arrival in Bois d’Arcy, and those disorders seem to have receded fairly quickly as a result of the medication prescribed. In any event, there is little mention of these delusional factors in later observations, although a prison warder observed that Mr Renolde talked to himself at night (hallucinatory dialogue?). The SMPR team found his psychiatric condition to be compatible with detention, not requiring admission to a psychiatric institution. The letter which the prisoner sent his parents on 18 July shows that he retained a certain degree of coherence, although he may have been keeping his delirium or hallucinatory disorders to himself.
– There is no evidence in the file indicating the presence of a depressive syndrome as such: no sign of carelessness, no expression of suicidal thoughts, no manifest sadness, apart from, of course, a legitimate gloom or sadness linked to incarceration, separation from his children, etc. ...
Having regard to the context and to the information in our possession, we consider that his committing suicide was more the consequence of a psychotic disorder than of a depressive syndrome. The act may have taken place in a hallucinatory state (it appears that he sometimes heard voices telling him to kill himself), especially if the medication had not been correctly taken, as the toxicological examinations show.
It is to be noted that the response of the ERIC team, which intervened from the outset following a suicide attempt, was to prescribe neuroleptics and not antidepressants, which confirms the psychotic nature. These disorders could perhaps have called for a discussion of the advisability of admission to a psychiatric unit if the hallucinatory, dissociative and delusional aspects had been prominent and hence incompatible with continued detention. However, seeing that the disorders rapidly improved, it may be felt that continued detention remained possible in so far as the SMPR kept the prisoner under very close observation, although supervision of his daily taking of medication would also have been helpful.
Conclusions:
(1) Mr Joselito Renolde was suffering from psychotic disorders at the time of his arrival in Bois d’Arcy Prison. His psychotic disorders were described as an acute delirious episode by the ERIC team and he made an initial suicide attempt on 2 July 2000 by phlebotomy. The suicide attempt may have taken the form of self-mutilation in a delusional state. It is also legitimate to wonder whether his assault on a warder, in the days that followed, was not likewise part of a pathological acting-out process. A course of neuroleptic treatment was immediately started, which seems to have been effective in that Mr Renolde’s speech became more coherent. At the same time, he was placed in the punishment block. If his state of health was compatible with detention, we do not consider that placement in the punishment block could actually have worsened his psychological condition, since the dominant disorders were not depressive but psychotic. It remains to be determined whether such disorders could have been treated satisfactorily in detention, bearing in mind that the medication was handed to the prisoner only twice a week and thus left at his disposal. In view of his lack of awareness of the disorders, it would perhaps have been preferable to have supplied him with the medication every day and to have supervised his taking it.
(2) If no medicinal substance was found in the toxicological examinations, it can only be concluded that the prisoner refrained deliberately (or in a state of delirium) from taking his medication (anxiolytics and neuroleptics). It cannot therefore be ruled out that this poor medicine compliance might have contributed to the suicide, which may have been committed in a state of delirium. However, even if Mr Renolde was no longer under medication, none of the members of the team, including the nurse who met him on the day of his suicide, noted any resurgence of delirium, any incoherent behaviour or any major signs of dissociation. The suicide attempt cannot be solely ascribed to psychotic disorders. It may quite conceivably have taken place at a time of legitimate despair or sadness in a person who readily resorted to acting-out (suicide attempt on 2 July, assault on 5 July, suicide on 20 July).
(3) On 2 July the ERIC team treated an injury which Mr Renolde had intentionally inflicted to his forearm with a razor blade in a moment of delirium. The practitioners attending to Mr Renolde did not observe any sign of depression but manifest psychotic disorders involving delirium, hallucination, the listening attitude, etc...
(4) Having regard to the information in our possession, we did not consider it necessary to meet the SMPR staff and the members of the ERIC team.
(5) This prisoner’s suicide was not foreseeable, at least in the short term, in so far as he did not display any suicidal intentions, no manifest depressive syndrome was present, and he was regularly monitored by the SMPR staff and had been seen that day by a nurse, who did not report anything abnormal in his behaviour.”
41. The civil parties were interviewed by the investigating judge on 23 May 2001.
42. On 23 July 2001 the judge notified the parties that the investigation was complete. In a letter of 9 August 2001 the civil parties’ lawyer asked for certain steps to be taken, namely for the persons responsible to be charged with the manslaughter of Joselito Renolde through a breach of their duties of care and safety, in the alternative with endangering his person by placing him in a punishment cell although he was known to be extremely fragile, and in the further alternative with failing to assist a person in danger.
43. In an order of 14 August 2001 the judge refused the request, giving the following reasons:
“The persons who had ‘custody’ of Joselito Renolde were not qualified to assess his physical and mental condition or to intervene in the process of distributing and administering his medication.
Mr Renolde was monitored on a very regular basis by the SMPR shortly after being transferred to Bois d’Arcy Prison. He was seen nearly ten times by that service between 3 and 20 July. His suicide attempt on 2 July prompted the ERIC team to intervene and to prescribe medication, which alleviated Mr Renolde’s psychotic disorders. The SMPR staff found his psychiatric condition to be compatible with detention, including in a punishment cell, since it did not decide to admit him to a psychiatric institution.
The experts did not find any evidence in the subject’s psychiatric records suggesting the presence of a depressive syndrome. In their view, his suicide was more the consequence of a psychotic disorder than of a depressive syndrome.
Accordingly, the constituent elements of manslaughter, endangering the person of another or failing to assist a person in danger have not been made out.”
44. In an order of 11 September 2001 the judge ruled that there was no case to answer, on the ground that the investigating authorities had found no basis on which anyone could be held criminally liable.
45. The civil parties appealed against the order to the Investigation Division of the Versailles Court of Appeal, asking for further inquiries to be made with a view to bringing charges against all those responsible for the offences of manslaughter, endangering the life of another and failing to assist a person in danger. In a memorial of 12 March 2002 they expressed doubts, in particular, about the 45-day disciplinary sanction imposed on Joselito Renolde, who was known to be a fragile person who had already attempted suicide and had displayed suicidal intentions in his letters.
46. In an interlocutory judgment of 29 March 2002 the Investigation Division ordered additional inquiries and appointed one of its judges to conduct them.
47. On 14 January 2003 the judge requested a copy of the file on the investigation in respect of Joselito Renolde.
48. On 19 May 2003 the judge interviewed Mr C., deputy governor of Bois-d’Arcy Prison and the person in charge of the “adult” wing, which included the “arrivals” block, the solitary-confinement block and the punishment block. Mr C. stated that Joselito Renolde had been included in the warders’ special register from 2 July, after slashing his arms, and that he had then been examined by the psychiatric emergency team. The psychiatrist had found that he was in a delusional state with acute psychotic decompensation. From that date on, he had been under special supervision and had been placed in a cell on his own. Mr C. explained that the taking of medication by prisoners was the responsibility of the SMPR staff and not the prison authorities. He also pointed out that the monitoring of correspondence could not entail reading every letter in detail.
49. On 29 September 2003 the investigating judge of the Court of Appeal ordered a further toxicological report on the basis of samples taken on 21 July 2000, with a view to determining the date on which Joselito Renolde might have stopped taking his prescribed medication. The report, submitted on 4 February 2004, concluded that at the time of his death, Joselito Renolde had not taken the prescribed anxiolytic medication for at least one to two days, and the neuroleptic medication for at least two to three days.
50. On 18 May 2004 the judge interviewed Dr L., the psychiatrist in charge of the Bois-d’Arcy SMPR. Dr L. considered that Joselito Renolde’s condition had not called for any particular precautions in terms of taking medication, and that there had been no clearly identified or suspected suicide risks, no serious behavioural disorders and no suspicion of incorrect use of medication. Nor, in the psychiatrist’s view, was there any incompatibility in prescribing neuroleptic medication to a prisoner in a punishment cell.
51. The submission of the findings of the additional inquiries was noted in a judgment of 11 June 2004.
52. A hearing before the Investigation Division was held on 12 January 2005.
53. In a judgment of 26 January 2005 the Investigation Division upheld the ruling that there was no case to answer, holding as follows:
“Following the prescription of neuroleptic medication by the medical service, no further signs of aggression towards others or himself were observed on the part of Joselito Renolde after the incident of 4 July 2000 until the afternoon of 20 July. The medication prescribed was therefore effective during that period.
It was decided by the medical authorities in the present case that Joselito Renolde should be allowed to administer his own treatment after being supplied with several days’ medication. There was a distribution on 17 July. The expert toxicological report established that the prisoner had not taken the medication supplied to him.
Joselito Renolde’s medication was thus administered in accordance with the regulations set out in the circular of 8 December 1994 on the provision of health care for prisoners. Since the principle that medication is taken freely by the prisoner was observed in Joselito Renolde’s case, it cannot be concluded on the basis of the evidence available prior to the afternoon of 20 July 2000 that the failure to depart from this principle constituted negligence within the meaning of Article 1213, paragraph 4, of the Criminal Code on the part of any doctor or member of the medical staff of Bois-d’Arcy Prison. Since the time of Joselito Renolde’s placement in a punishment cell, no suicide risk or serious behavioural disorder had been identified; nor was there any suspicion of incorrect use of medication.
Accordingly, as regards the actions of the prison staff, neither the investigation nor the additional inquiries have found any potential evidence of negligence within the meaning of Article 1213, paragraph 4, of the Criminal Code.
Nor did the imposition of a disciplinary sanction on Joselito Renolde constitute a manifestly deliberate breach of a special statutory or regulatory duty of safety or care exposing the prisoner to an immediate risk of death or injury. The same applies to the fact of not checking that the medication was taken. No provision prohibited the imposition of a disciplinary sanction in Joselito Renolde’s case or [dictated] that he should be compelled to take his medication.
Lastly, no evidence from the investigation or the additional inquiries supports the conclusion that anyone deliberately refrained from providing or ensuring the provision of assistance to Joselito Renolde, who had been prescribed medication and had not caused any particular incident for 15 days.”
The civil parties did not appeal on points of law.
54. Since 1986, psychiatric treatment for prisoners has been provided by the public hospital service. Article 11 of the Decree of 14 March 1986, issued pursuant to the Psychiatric Sectorisation Act of 31 December 1985, provides:
“Within each regional branch of the Prison Service, one or more prison-based psychiatric sectors shall be set up, each attached to a public hospital ... Each of these sectors shall include a regional medical and psychological service [SMPR], based in a prison facility ...
The sector shall be placed under the authority of a hospital psychiatrist ... and assisted by a multidisciplinary team from the hospital to which the sector is attached ...”
55. Article 11, paragraph 3, of the Decree provides that the SMPRs’ duties, organisational structure and operating procedures are to be laid down in a set of model rules.
The order of 14 December 1986 on the model rules states the following:
“The regional medical and psychological service ... shall engage in activities for the prevention, diagnosis and treatment of mental disorders for the benefit of the prison population in the facility in which it is based ...”
“The regional medical and psychological service shall, more specifically, perform the following tasks:
– a general task of prevention of mental illness in the prison environment, in particular through systematic testing for mental disorders of all those entering the facility in which it is based;
– provision of the necessary psychiatric treatment to both remand and convicted prisoners ...”
56. The Law of 18 January 1994 transferred responsibility for the provision of all treatment for prisoners to the public hospital service. Prisoners receive treatment from medical units – outpatient consultation and treatment units (UCSAs) – that are set up within prisons and are directly attached to the nearest public hospital (Article D. 368 of the Code of Criminal Procedure).
57. Article D. 373, paragraph 3, of the Code provides that the practical aspects of the SMPR’s intervention and its coordination with the UCSA are to be laid down in a protocol drawn up in accordance with the Decree of 14 March 1986.
58. Article D. 382 of the Code provides that, if the doctors from the SMPR or the UCSA consider that a prisoner’s health is not compatible with detention, they are to notify in writing the prison governor, who must immediately inform, where appropriate, the relevant judicial authority.
59. Article D. 398 provides:
“Detainees suffering from the mental disorders referred to in Article L. 342 of the Public Health Code cannot be kept in a prison facility.
On the basis of a detailed medical certificate and in accordance with the legislation in force, it shall be the duty of the prefect to ensure that they are compulsorily admitted as soon as possible to an approved health-care institution within the meaning of Article L. 331 of the Public Health Code.
The rule in the second paragraph of Article D. 394 concerning supervision by a police or gendarmerie officer while in the institution shall not apply to them.”
60. Article D. 249 of the Code of Criminal Procedure divides disciplinary offences by prisoners into three degrees of severity. Article D. 249-1 provides that physical violence by a prisoner against a member of the prison staff constitutes a first-degree offence (the most serious).
61. Placement in a punishment cell is provided for in Article D. 251, point (5), of the Code. Article D. 251-3 of the Code lays down the terms of such placement:
“Placement in a punishment cell under Article D. 251, point (5), consists in placing the prisoner in a cell equipped for that purpose, which he must occupy alone. The penalty shall throughout its duration entail the prohibition of purchases in the canteen in accordance with Article D. 251, point (3), and the prohibition of visits and all activities.
However, prisoners in a punishment cell shall have one hour’s exercise per day in an individual yard. The penalty shall, moreover, entail no restrictions on their rights regarding written correspondence.
The duration of the placement in a punishment cell shall not exceed forty-five days for a first-degree disciplinary offence, thirty days for a second-degree disciplinary offence and fifteen days for a third-degree disciplinary offence.”
62. Article 121-3 of the Criminal Code provides:
“No serious crime (crime) or other major offence (délit) can be established in the absence of intention to commit it.
However, where the law so provides, deliberately endangering the person of another shall constitute a major offence.
A major offence shall also be established, where the law so provides, in cases of recklessness, negligence or a breach of a duty of care or safety laid down by statute or regulation where it is found that the person concerned failed to display normal diligence, regard being had where appropriate to the nature of his role or functions, his responsibilities and the power and means at his disposal.
In the case referred to in the preceding paragraph, natural persons who did not directly cause the damage, but who created or contributed to creating the situation which allowed the damage to occur or failed to take steps enabling it to be avoided, shall be criminally liable where it is established that they have committed a manifestly deliberate breach of a particular duty of care or safety laid down by statute or regulation, or an act of gross negligence which exposed another person to a particularly serious risk of which they could not have been unaware ...”
63. Although the principle of State liability for the acts of the prison authorities, particular in relation to prisoner suicides, has been affirmed by the Conseil d’Etat since 1918, such liability has traditionally required the existence of gross negligence.
In the Chabba judgment of 23 May 2003 (AJDA 2003, p. 157) the Conseil d’Etat departed from its previous position and acknowledged State liability for the suicide of a remand prisoner, on account of a series of acts of ordinary negligence attributable to the prison service. That position has since been reaffirmed (see, for example, Nancy Administrative Court of Appeal, Tahar Sidhoun, 17 March 2005, Petites affiches no. 102, 23 May 2006, p. 6, note by P. Combeau, and Marseilles Administrative Court, 9 February 2006, Plein Droit no. 71, December 2006, Jurisprudence p. V, concerning a suicide in an administrative detention centre).
64. The relevant parts of Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison read as follows, as regards prisoners suffering from mental disturbance:
“... D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide
...
55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities.
56. In those cases where the use of close confinement of mental patients cannot be avoided, it should be reduced to an absolute minimum and be replaced with one-to-one continuous nursing care as soon as possible.
57. Under exceptional circumstances, physical restraint for a brief period in cases of severely mentally ill patients may be envisaged, while the calming action of appropriate medication begins to take effect.
58. The risk of suicide should be constantly assessed both by medical and custodial staff. Physical methods designed to avoid self-harm, close and constant observation, dialogue and reassurance, as appropriate, should be used in moments of crisis. ...
F. Violence in prison: disciplinary procedures and sanctions, disciplinary confinement, physical restraint, top security regime
...
66. In the case of a sanction of disciplinary confinement, any other disciplinary punishment or security measure which might have an adverse effect on the physical or mental health of the prisoner, health care staff should provide medical assistance or treatment on request by the prisoner or by prison staff. ...”
65. The relevant parts of Recommendation Rec(2006)2 read as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Recommends that governments of member states:
– be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules; ...
Appendix to Recommendation Rec(2006)2
...
12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.
12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs.
...
39. Prison authorities shall safeguard the health of all prisoners in their care.
...
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
...
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
...
h. noting physical or mental defects that might impede resettlement after release;
...
j. making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements.
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
...
43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. ...”
VIOLATED_ARTICLES: 2
3


ITEMID: 001-23277
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NEKVEDAVICIUS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Christian Nekvedavicius, is a German and Lithuanian national, who was born in 1946 and lives in Münster (Germany).
In mid-October 1994, the applicant started a relationship with L. They began living together in L.’s flat as from 11 January 1995 and planned to get married once the applicant would have obtained his divorce from his second wife. At the end of February 1995 it was confirmed that L. was pregnant. In March 1995 the relationship between the applicant and L. broke down and they ceased co-habiting.
On 11 September 1995, during L.’s pregnancy, the applicant applied to the Münster District Court (Amtsgericht) to be granted a right of access. This application was rejected by a decision of the Münster District Court of 13 October 1995. On 16 October 1995 L. gave birth to a daughter S.
The applicant, on his own initiative, recognised his paternity while the mother first contested it. On 23 November 1995 she acknowledged that the applicant was the natural father of her daughter.
On 11 November 1995 the applicant applied to the Münster District Court, acting as guardianship court (Vormundschaftsgericht), for a decision granting him a right of access (Umgangsregelung) to his daughter. He also applied for an interim injunction on his right of access. On 18 December 1995 the Münster District Court dismissed this request on the ground that it could not decide before holding a hearing on this question. A hearing was held on 12 January 1996.
On 15 January 1996 the applicant renewed his request for an interim injunction. On 19 January 1996 the Münster District Court again dismissed this request considering that the question of access could only be resolved by means of an expert opinion.
On 24 May 1996 the District Court held a hearing in the presence of the parties, an expert and the applicant’s former wife as a witness.
On 29 October 1996 the Münster District Court, relying inter alia on a psychological expert opinion of 21 March 1996, granted the applicant a right of access to his daughter every Tuesday in the premises of the Social Office (Amt für soziale Dienste).
On appeal of the child’s mother, the Münster Regional Court (Landgericht) quashed this decision on 17 March 1997 after having heard the applicant, the child’s mother and a representative of the Münster Youth Office on 14 March 1997.
Referring to Articles 1711 § 2 and 1634 § 2 of the Civil Code (Bürgerliches Gesetzbuch - see the section of the Relevant Domestic Law below), the Regional Court held that a child should have personal contact with the father since, as a general rule, maintaining personal contact to both parents favoured a healthy development of the child. However, access against the will of the mother must be denied where the best interests of the child warranted such a decision. In the present case, there was serious reason to believe that the animosity between the parents would be detrimental to the child. Unlike the expert, the Regional Court found that granting the applicant a right of access would not help the parents to clarify their respective parental roles, to improve their relationship and to co-operate. In particular, the applicant’s conduct vis-à-vis the child’s mother adversely affected the child. He was not willing or capable to respect the legitimate interests of the child’s mother or the special situation of the child living with her mother. The applicant did not accept that the child’s mother had put an end to their short relationship which had lasted from January to March 1995. This was shown by the fact that he had been determined to obtain information about her pregnancy from her gynaecologist and to be informed about the address of the clinic where the child was to be born in order to be present at the child’s birth. Moreover, prior to the child’s birth, he introduced several court proceedings with a view to being granted a right of access and having his surname added to the child’s surname. Three weeks after the child’s birth, he applied again to be granted a right of access and requested that a coercive fine be imposed on the child’s mother. Although the applicant could not be criticised for claiming a right of access, his conduct showed that he was seeking a de facto parental authority over the child. Against this background, the Regional Court found that, if the applicant were granted a right of access, he would oppose any decision by the mother and conflict and numerous new court proceedings would be unavoidable. The Regional Court concluded that, in these circumstances, the relationship between mother and child would continuously be disturbed. This would not be in the child’s best interests.
On 6 May 1997 the applicant lodged a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht).
On 8 January 1999 a panel of three judges of the Federal Constitutional Court refused to entertain this complaint.
On 1 July 1998, after the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht - see the section of the Relevant Domestic Law below), the applicant applied again to the Münster District Court for a decision granting him a right of access to his daughter.
On 22 September 1998 the District Court heard the parties and a social worker of the City of Münster. The social worker stated that he had made a visit to the applicant’s home where the latter lived with his six-year-old daughter Z. According to the social worker, there was no indication that granting the father a right of access would be contrary to the interests of S. He found, however, that for reasons of practicability the strained relations between the parents should first improve.
On 26 September 1998 the District Court appointed a psychological expert to assess whether granting the applicant a right of access would adversely affect the child’s well-being.
On 30 September 1998 the expert informed the court that, due to his excessive workload, he was not in a position to commence his assessment before mid-December.
On 6 and 15 October 1998 the applicant applied to the Münster District Court for provisional measures granting him a right of access to his daughter.
On 24 October 1998 the applicant appealed to the Federal Constitutional Court complaining that the Münster District Court failed to take the required action. He further applied for an interim measure granting him a right of access to his daughter.
On 27 October 1998 the District Court dismissed the applicant’s request for interim measures considering that the unusually strong tensions existing between the parents made it necessary to await the expert opinion with a view to determining the question of access. According to the District Court, to grant such a right provisionally would be more likely to be disadvantageous than advantageous to the child’s well-being.
Thereafter, the applicant unsuccessfully instituted various proceedings challenging the judge of the Münster District Court, G., and, subsequently, the judges G., H. and S. of the Hamm Court of Appeal (Oberlandesgericht) for bias. The applicant also challenged the psychological expert on the ground that he had refused to indicate whether or not he intended to reply to all the questions of the District Court, including those which, in the applicant’s opinion, were unlawful. Furthermore, the applicant contested the expert’s impartiality alleging that, as the appointed court expert, he might be influenced by the well-known hostile attitude of judge G. towards men.
In a letter of 26 April 1999 the applicant informed the Münster District Court of his intention not to co-operate any further with the expert and applied for an immediate decision.
On 8 January 1999 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain the applicant’s constitutional complaint lodged on 24 October 1998.
On 1 April 1999 the applicant again requested the Münster District Court for an interim injunction granting him a right of access to his daughter.
By a decision of 9 April 1999, the Münster District Court dismissed the request.
On 12 May 1999 the Münster District Court rejected the applicant’s application of 1 July 1998 to be granted a right of access. In reaching the above decision, the District Court had regard to its decision of 17 March 1997, according to which it was not in the best interests of S. to grant the applicant a right of access. Pursuant to Article 1684 of the Civil Code, as drafted by the amended Law on Family Matters, this decision might be open to discussion should the circumstances on which the decision was based change. However, with a view to establishing the relevant new facts on this question, the court found to be dependent on the assistance of the psychological expert. Due to the applicant’s refusal to co-operate with that expert, this question could not be resolved and the requested right of access had to be denied.
The applicant appealed against the two above decisions to the Hamm Court of Appeal.
On 25 January 2000 the Hamm Court of Appeal dismissed the applicant’s appeal against these decisions.
On 27 January 2000 the applicant lodged a constitutional complaint against this decision with the Federal Constitutional Court and requested for interim measures.
On 1 March 2000 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain both the applicant’s constitutional complaint and his request for interim measures.
On 4 September 2000 the applicant applied to the Münster Administrative Authorities (Bürgeramt) to be informed of the child’s whereabouts. On 6 August 2001 he requested the Münster District Court to be granted a right of access. He also applied for an interim injunction. He stated that the previous court decisions were in breach of fundamental and human rights and had to be revised in the light of the quickly changing circumstances of the child. He alleged that the child’s mother was a member of a radical feminist sect which professed the superiority of women over men and was said to perform strange rituals, including the killing of children. As soon as she had learned that she was expecting a healthy daughter, she gave up her feigned plan to get married and, with the assistance of German female civil servants and judges, deprived him of the common child.
On 24 April 2002 the Münster District Court rejected the applicant’s requests for reasons of competence. It considered that the Unna District Court was the competent court having regard to the residence of the child’s mother.
On 28 June 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against this decision on the ground that the applicant had failed to request the transfer of the case to the competent district court.
On 16 August 2002 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint lodged against this decision and dismissed the applicant’s request for an interim injunction.
The relevant provision of the Civil Code (Bürgerliches Gesetzbuch) concerning custody and access for a child born in wedlock was worded as follows:
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:
“Custody over a minor child born out of wedlock is exercised by the child’s mother ...”
“1. The person having custody of the child shall determine the father’s right of access to the child. Article 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in Article 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
The statutory provisions on parental authority and access are to be found in the Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998.
Article 1626 § 1 reads as follows:
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. Parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s welfare would be put at risk. The family courts may order that the right of access is exercised in the presence of a third party, such as a Youth Office authority or an association.


ITEMID: 001-108157
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF J.H. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (in case of expulsion to Afghanistan)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant claimed that he was born in 1991. The Government contested that and claimed that he was born in 1988. He currently lives in London.
8. On 12 December 2003, the applicant’s older brother, SH, arrived in the United Kingdom and made an application for asylum based on the risk to him as the son of a high-ranking member of the Communist People’s Democratic Party of Afghanistan (“PDPA”). That application was refused by the Secretary of State on 19 December 2003.
9. On 11 May 2004, SH’s asylum appeal was allowed by an Adjudicator of the then Immigration Appellate Authority (“IAA”). The Adjudicator accepted that SH’s father had been a prominent, high-ranking member of the PDPA who had been in touch with its highest officials and who had also been a member of the central committee responsible for policy making. He also accepted that SH’s father was “known” by armed factions; was without any existing political party or tribal protection in Afghanistan; was living outside Afghanistan; and would be at risk upon return. The Adjudicator noted that SH had, in later years, made some contacts and forwarded documents to others on behalf of his father and that a powerful person with political influence had occupied the family land for a considerable time. He concluded that the evidential basis for an historical and present day interest in SH had been established. In the circumstances, the Adjudicator found that the applicant’s brother fell “fairly and squarely” within the protection category set out by the United Nations High Commissioner for Refugees (“UNHCR”) as a relative of a former PDPA member, and that there were substantial grounds for believing that he would face a real risk of ill-treatment contrary to Article 3 of the Convention if he were to be returned to Afghanistan.
10. As a result, the applicant’s brother was granted refugee status in the United Kingdom by the Secretary of State.
11. The applicant arrived in the United Kingdom on 3 July 2009 and was arrested by the police as an illegal immigrant.
12. On 6 July 2009, he claimed asylum and claimed to be 17 years of age, giving his date of birth as 30 July 1991. The factual basis of his asylum claim was similar to that of his brother, SH, and he also relied upon his father’s previous position as a high-ranking member of the PDPA. He claimed that his father had been a close friend and the personal doctor of several prominent politicians, including Dr Najibullah (the President of Afghanistan between 1986 and 1992) and other Government ministers. He claimed that, in 1992 when the communist regime had collapsed, his father had been forced to flee Afghanistan for the Russian Federation. He claimed that his father had continued to be politically active in opposition to a number of warlords and people involved in the current Afghan Government, including Generals Dostum, Fahim and Sayat who he had known personally. The applicant claimed that, after his father had left Afghanistan, his family had been forced to move to Khost in eastern Afghanistan where they had lived for over a decade using different surnames so that they would not be identified. Approximately six years ago, his family had moved to Kabul for seven or eight months. During that time, members of the National Security Intelligence had come to their home on two or three occasions. On the last occasion, they had arrested his uncle who had subsequently been detained for a year. They had also tried to arrest the applicant’s brothers. The family had therefore moved to stay with another uncle, but whilst there, one of his brothers, FH, had been shot and killed in 2003. The applicant had travelled to Pakistan with his mother and a younger brother where he had lived for five or six years before travelling alone with an agent to the United Kingdom via Iran, Greece, Italy and France.
13. On the same date, two social workers from Liverpool Social Services assessed the applicant as being significantly over the age of 21 and in the region of 25 years of age. In coming to that conclusion, they stated that they had considered his physical appearance, general demeanour, account of his life in Afghanistan and Pakistan and his experiences during his travel to the United Kingdom.
14. On 4 August 2009, his application for asylum was refused by the Secretary of State, who considered that his account was vague and contradictory, and that it was not plausible that he would not be able to recollect any of the significant details of his life in Khost, his journey to Pakistan or the activities of his father. In particular, it was not accepted that his father was still politically active because it was implausible that the applicant would not be able to recollect any details of his father’s activities given that he had remained in relatively regular contact with him. It was also not considered to be credible that the Afghan authorities or any warlords would be interested in the applicant given, inter alia, the fact that he had not been politically active himself; the length of time that had passed since his father had left Afghanistan; and the fact that he had lived in Afghanistan without problems for ten years before leaving. It was also noted that his father had voluntarily returned on one trip to Afghanistan, undermining his claim that his father was at risk there due to his high profile. His claim that the death of his brother, FH, was related to his father’s political activity was considered to be entirely speculative. His account of events in Kabul was rejected because the details of the same were vague and because they contradicted the account that his brother had given at his appeal hearing in 2004. His credibility was considered to be undermined by his failure to claim asylum in Greece, Italy or France. Even taking his claim at its highest, it was considered that he could relocate within Afghanistan to avoid any problems from warlords.
15. On 14 August 2009, the applicant’s appeal was dismissed by an Immigration Judge at the then Asylum and Immigration Tribunal (“AIT”). The Immigration Judge acknowledged that the applicant’s brother’s asylum appeal had been successful in 2004 because the Adjudicator had accepted that his father had occupied a position of prominence and a high-ranking position within the PDPA. Nevertheless, the Immigration Judge referred to the later AIT country guideline determination of SO and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003 (see paragraphs 24-25 below) and found that there were differences between the claims of the two brothers, including the fact that the applicant had never been involved in any political activity, whilst his brother had carried out some activities on behalf of their father which might have drawn the authorities’ attention to him. In addition, the Immigration Judge did not accept that their father continued to be politically active or to have a high profile in Afghanistan, because the only evidence of any political activity related to events over 17 years previously, prior to 1992, when the applicant had still been a small child, and politics and personnel in Afghanistan had changed since that time. Even if his father had continued to be politically active, the Immigration Judge did not accept that the Afghan authorities or warlords would have any adverse interest in the applicant, given his lack of political profile and education; his age on leaving Afghanistan; the fact that he had only been a small child when his father had been politically active; and recent political developments in Afghanistan.
16. The Immigration Judge also made a series of adverse credibility findings against the applicant due to his vagueness when giving evidence; his failure to claim asylum in safe countries en route to the United Kingdom, including Greece, Italy and France; and the discrepancies between his account and that of his brother including, inter alia, the level of contact that had taken place between the various family members since their respective departures from Afghanistan and whether or not one brother FH had been shot. In particular, it was not accepted that SH would not have mentioned during his own asylum application that one of their brothers had been shot had such an event occurred. Even if his brother FH had died, the Immigration Judge did not accept that he had been killed by the Mujaheddin, given that the applicant himself had stated that he did not know who had killed him but thought it was the Mujaheddin. The Immigration Judge considered that the applicant had used his age as a convenient cover whenever he did not know the answer to a question even though he had been age-assessed by social workers as being between 20 to 25 years of age. The Immigration Judge considered that it would have been expected that the applicant would have discussed matters with his family and would have had some awareness of his father’s political activities.
17. Finally, the Immigration Judge did not accept that the level of indiscriminate violence in Afghanistan, and in Kabul in particular, reached a level such as to constitute a real risk to the applicant.
18. On 19 August 2009, his application for reconsideration was dismissed by a Senior Immigration Judge at the AIT because there had been no error of law.
19. On 17 September 2009, his application for reconsideration was dismissed by the High Court because the appeal determination did not disclose any error of law. The findings of fact and the findings in relation to credibility were matters for the Immigration Judge having, as he had done, properly directed himself in relation to the law. The reasons for his findings were clear and carefully expressed.
20. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department.
21. Until 4 April 2005, appeals in asylum, immigration and nationality matters were heard by the IAA.
22. From 4 April 2005, the then AIT replaced the former system of Adjudicators and the Immigration Appeal Tribunal (“IAT”). Section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant could renew the application to the High Court, which would consider the application afresh.
23. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
24. Country guideline determinations of both the former AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. Unless expressly superseded or replaced by a later country guideline determination, country guideline determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
25. In the country guideline determination of SO and SO (KhaD – members and family) Afghanistan CG [2006] UKAIT 00003, the AIT held that the issue of risk to persons having a connection with the PDPA had to be considered by weighing up a number of factors including some personal to the individual. Furthermore, it could not be said that former membership of Khadimat-e-Atalat-e Dawlati (“KhaD” - the secret service wing of the Communist PDPA regime in Afghanistan until 1992) or the PDPA would generally suffice to establish a risk of persecution or treatment contrary to Article 3 on return unless an individual had personally crossed or had had “concrete conflicts” with people who were now in power. In that context, the AIT considered that past or present personal conflicts were more important than political conflicts. The AIT further held that in assessing whether family members of a PDPA and/or a KhaD member would be at risk, there may be factors reducing or removing risk such as the death of the PDPA/KhaD member, and the amount of time that had elapsed since his death.
26. In the country guideline determination of GS (Article 15 (c): Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, promulgated on 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatened the civilian’s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of Council Directive 2004/83/EC.
27. Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: “the Qualification Directive”) has the objective, inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble).
28. In addition to regulating refugee status, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.
“Serious harm” is defined in Article 15 as consisting of:
“a) death penalty or execution; or
b) torture or inhuman or degrading treatment of an applicant in the country of origin; or
c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”.
29. The Qualification Directive was transposed into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006.
30. In July 2009 UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan (“the July 2009 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time.
31. With regard to persons associated with the former PDPA, those Guidelines stated the following:
“The People’s Democratic Party of Afghanistan (PDPA) was formed in 1965 by Nur Mohammad Taraki on Marxist/Leninist ideology due to domestic discontent and the absence of political freedoms. It believed in a one-party, heavily secularized state, and was particularly intolerant of political opposition from its Islamist rivals. The PDPA eventually split into the Khalq (People) and Parcham (Flag) branches. After the Khalq faction of the PDPA deposed the ruling party through a coup carried out by its supporters in the military in 1978 (the Saur Revolution), it formed a government that was violently intolerant of political opposition. The Soviet-supported PDPA government’s attempts at forcible reform of polity and society resulted in a surge of support for its Islamist rivals, who attempted to oust it with Pakistani support. In 1977, the two factions reunited under Soviet pressure and its name was changed to Watan (Homeland) Party. It collapsed in 1992 when, following the Peshawar Accords, Mujaheddin troops entered Kabul and the last President of a communist government in Afghanistan, Mohammed Najibullah (previously head of the secret service KhAD) had to seek refuge in a UN-building in Kabul where he stayed until he was killed by Taleban troops entering Kabul in September 1996.
In late 2003, a congress of the People’s Democratic Party of Afghanistan (PDPA) took place in Afghanistan, which led to the creation of Hezb-e-Mutahid-e-Mili (National United Party), a party registered in 2005 then comprising 600 members. Former PDPA members have also reportedly founded several other parties. Most recently, a new parliamentary group, the United National Front, was inaugurated on 12 March 2007 as a broad coalition of former and current militia leaders, commanders from the anti-Soviet resistance, ex-Communist leaders, and various representatives of social and ethnic groups.
Significant numbers of the former People’s Democratic Party of Afghanistan (PDPA) – subsequently renamed Watan (Homeland) – members and former security officials, including the Intelligence Service (KhAD/WAD), are working in the Government.
While many former PDPA members and officials of the communist government, particularly those who enjoy the protection of and have strong links to influential factions and individuals in the current Government, are generally not at risk, some high-ranking members of the PDPA continue to face a risk of persecution. Such risk depends on the individual’s personal circumstances, including family background, professional profile, political links, and whether he or she has been associated, or perceived to be associated, with the human rights violations of the communist regime in Afghanistan between 1979 and 1992.
Former PDPA high-ranking members without factional protection from Islamic political parties, tribes or persons in a position of influence, who may be exposed to a risk of persecution, include the following:
• high-ranking PDPA members, irrespective of whether they belonged to the Parcham or Khalq faction of the party may be at risk if they are known and had a public profile. These encompass high-ranking members of Central and Provincial PDPA Committees and their family members and secretaries of PDPA’s Committees in public institutions; and
• former security officials of the communist regime, including KhAD members, also continue to be at risk, in particular from the population – e.g. families of victims of KhaD ill-treatment – given their actual or perceived involvement in human rights abuses during the communist regime.
Former PDPA high-ranking members, or those associated with the commission of human rights violations during the former Communist regime, may also be at risk of persecution by mujaheddin leaders, and armed anti-Government groups.”
32. On 17 December 2010, UNHCR issued updated Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”). Those Guidelines observed, inter alia, under “I. Introduction”:
“These Guidelines supersede and replace the July 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan. They are issued against a backdrop of a worsening security situation in certain parts of Afghanistan and sustained conflict-related human rights violations as well as contain information on the particular profiles for which international protection needs may arise in the current context in Afghanistan.
...
UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds.
In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication.
UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.
In light of the serious human rights violations and transgressions of international humanitarian law during Afghanistan’s long history of armed conflicts, exclusion considerations under Article 1F of the 1951 Convention may arise in individual claims by Afghan asylum-seekers. Careful consideration needs to be given in particular to the following profiles: (i) members of the security forces, including KHAD/WAD agents and high-ranking officials of the communist regimes; (ii) members and commanders of armed groups and militia forces during the communist regimes; (iii) members and commanders of the Taliban, Hezb-e-Islami Hikmatyar and other armed anti-Government groups; (iv) organized crime groups; (v) members of Afghan security forces, including the NDS; and (vi) pro-Government paramilitary groups and militias.”
33. Members of the former PDPA and their families were not included within the potential risk profiles set out in the December 2010 UNHCR Guidelines.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-104877
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DESTILACIJA PLC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: The applicant is a private company with headquarters in Teslić, Bosnia and Herzegovina. It was represented before the Court by Mr S. Đorđević and Mr S. Mikić, lawyers practising in Doboj. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company had a right of allocation with respect to a flat in Teslić (as explained below, the allocation right holders were socially owned enterprises and other public bodies which administered socially owned flats in the former Socialist Federal Republic of Yugoslavia). On 29 October 1998 it initiated administrative proceedings for the eviction of D.N. who had remained in the flat after the death of his grandfather.
On 19 February 2001 the competent first-instance administrative body ruled that the occupancy right over the flat could not be transferred to D.N. from his late grandfather and, accordingly, ordered his eviction. On 5 April 2001 and 14 May 2002, respectively, the competent second-instance administrative body and the Supreme Court of the Republika Srpska upheld that decision. D.N. was evicted on 13 September 2002.
On 16 July 2002 D.N. complained to the Human Rights Chamber, a domestic human-rights body, about the outcome of the administrative proceedings mentioned above, relying on Articles 6 and 8 of, and Article 1 of Protocol No. 1 to, the European Convention on Human Rights.
On 8 February 2007 the Constitutional Court of Bosnia and Herzegovina (the legal successor of the Human Rights Chamber) found a violation of D.N.’s right to respect for his home, quashed the Supreme Court decision of 14 May 2002 and ordered that he be reinstated in the flat. The applicant company was informed of that decision through the housing authorities on 12 August 2007.
On 5 September 2007 the Supreme Court, pursuant to the Constitutional Court decision, quashed the decisions of 19 February 2001 and 5 April 2001 and ruled against the applicant company.
It would appear that the applicant company has subsequently agreed to the privatisation of the flat by D.N. under the Privatisation of Flats Act 2000 (see below).
In the former Socialist Federal Republic of Yugoslavia practically all flats were under the regime of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina).
In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses or registered members of their family households who were also using the flat (see sections 19 and 21 of that Act). In practice, these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass, as of right, to multiple generations for whom the initial employment-based link to the allocation right holder no longer existed (for more information about socially owned flats see Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-8, 27 May 2010).
The concept of “social ownership” was abandoned during the 1992-95 war . As a result, socially owned flats were effectively nationalised. Under the Privatisation of Flats Act 2000, which entered into force on 2 March 2000, the occupancy right holders were entitled to purchase their flats. Furthermore, the role of the allocation right holders changed. They are now obliged to agree to the privatisation of flats if the occupancy right holder so requests (see section 13 of that Act), or, in the absence of such a request, to let out the flat (section 61(1) of that Act). In both cases, the proceeds (that is, the purchase price or the rent) are to be paid to the Republika Srpska Housing Fund (sections 36 and 40(3) of that Act).