ITEMID: 001-85775
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GRADINAR v. MOLDOVA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1956 and lives in Comrat. She acts on behalf of her deceased husband, Mr Petru Grădinar (“G.”).
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. G. was in conflict with a number of officers of the Comrat police and was allegedly persecuted by those officers for criticising them and helping alleged victims of police abuse. In 1993 G. was allegedly abducted by the local police and a ransom was requested. Having been kept for 15 days in the woods, he was released and on 24 December 1993 lodged a complaint against several officers of the local police, including D., the Deputy Chief of the Comrat police. A criminal investigation was opened but was discontinued for lack of evidence.
8. On 11 March 1995 M., a subordinate of D., made a complaint against G. for resisting the legitimate orders of the police. On the same day G. made a complaint against D., M. and another officer for abusing their power by beating him up at his home and requested the opening of a criminal investigation. The judge examining the two cases closed the first one for lack of evidence. The criminal investigation into G.’s complaint was discontinued some time later.
9. On 4 May 1995 the personnel of the local police station wrote a letter to various authorities in support of the three officers and against D.C. (one of the three accused in the present case). The Prosecutor General found that many of the statements by the police officers in that letter were unfounded and tendentious and contained gratuitous accusations against G., D.C. and the prosecutor who had opened the criminal investigation. There was mention of talk among the officers about possibly resorting to “illegal methods of fighting” the suspects.
10. On 16 September 1995 a burnt-out car was found in a forest near Comrat. The police found the remains of a person in the boot of the car. A criminal investigation was opened and led to the conclusion that the victim was D. Three persons became the prime suspects: the C. brothers (D.C. and G.C.) and G.
11. According to the prosecution, the following events led to the murder of D. on the night of 15 to 16 September 1995. In 1994 D. had opened a criminal investigation against G.C. for “aggravated hooliganism”. The C. brothers and G. were in serious conflict with D. On 15 September 1995 D. visited a bar in Comrat, where he met with the C. brothers and G., was insulted by them and was hit outside the bar. They agreed to meet at around 4 a.m. at a roundabout to finish the dispute.
12. When they met at 4 a.m., the C. brothers and G. beat D. and then forced him into the back of his police car and drove to a forest, followed by G. in his own car. In the forest, they continued beating D. and then loaded him into the boot of his car, sprayed petrol all over it and set the car on fire.
The applicant disputed this version of events.
13. On 20 May 1997 the Chişinău Regional Court acquitted all three suspects. On 21 October 1997 the Court of Appeal upheld that judgment.
14. On 5 December 1997 a bomb exploded near G.’s house but nobody was hurt. G. lodged a complaint and requested measures of protection. The criminal investigation initiated at his request could not identify the bombers and was closed in February 1998. The Ministry of the Interior refused to apply measures of protection to him because he had not received any threats and there was no reason to expect a repeat of the bombing.
15. On 12 January 1998 the Supreme Court of Justice quashed the lower courts’ judgments of 20 May and 21 October 1997 and ordered a full rehearing of the case.
16. On 11 June 1999 G. and his son were killed in their car by gunmen. The criminal investigation subsequently launched did not reveal the identities of the killers. On 6 July 1999 the applicant insisted on the continuation of her late husband’s retrial in order to prove his innocence. She was recognised as his legal representative and was allowed to make submissions to the courts in addition to those made by the lawyer whom she had appointed.
17. On 16 September 1999 the Chişinău Regional Court (“the first-instance court”), the only one which examined the witnesses in the case directly (except for P.O., the prison hospital doctor), found the following facts:
18. On 17 September 1995 D.C. was taken to the local police station and questioned as a witness about the events of the night of 15 to 16 September 1995. On 18 September 1995 G. was taken to the same police station and also questioned as a witness about the same events.
19. They were not informed of their rights and were not assisted by lawyers. They were handcuffed while questioned. After the questioning, administrative files were opened on the basis of their alleged insults to D. at the bar and a judge ordered their arrest for ten days as an administrative sanction. During the administrative arrest further questioning took place and other procedural steps were taken, resulting in evidence later used in the criminal case against them. In particular, during this period (18-22 September 1995), G. and D.C. confessed to having murdered D.
20. The court found that the initial reports which had served as a basis for the administrative arrest had been filed in breach of the proper procedures. There had been no grounds for the administrative arrest because the two men were suspects in a criminal case and any detention should have been ordered on that basis.
21. On 19 September 1995 G. and D.C. were taken to a remand centre in Chişinău, where they were questioned again until 21 September 1995 as witnesses and without legal assistance. They made statements accepting their guilt during the questioning.
22. On 21 September 1995 they were, for the first time, interviewed as suspects (as opposed to witnesses), still without having their rights explained and without access to a lawyer.
23. On 9 October 1995 both D.C. and G. were questioned for the first time in the presence of their lawyers and each confessed to having committed the crime. However, when signing the record of the questioning, each wrote that he did not accept any guilt. The same happened on 7 November 1995 in respect of G.C., who had been arrested in Russia and extradited to Moldova. In his statement G.C. mentioned that G. and D. had fought in the woods and had both fallen to the ground before D. was immobilised and burned in his car. D.C. noted that after taking C.S. to the hospital where she worked after 3 a.m., they had driven back by the police station building and towards the roundabout. However, the court found that this was contradicted by the officer P.V., who had been in a police car parked next to the police station and who had not seen any car drive past the station at that time.
24. In early October 1995 G. lodged two complaints about ill-treatment by the police. On 15 December 1995 the investigating judge requested the prosecutor to investigate the allegations. On 1 March 1996 the prosecutor answered in respect of one complaint that the facts had not been confirmed but did not attach any documents from the investigation as required by law. There was no evidence of any investigation of the second complaint.
25. In October 1995 G. was admitted to a hospital for detainees, where he was examined by Dr P.O. on 13 October 1995. Dr P.O. testified in court that G. had complained to him of ill-treatment by the police, but because there were no visible signs, this had not been recorded in the medical report. The court noted that the medical report had been drawn up almost a month after the alleged ill-treatment, which prevented the verification of the allegations. However, G.’s medical file showed that he had complained of pain in the kidneys and broken chest bones and that he had been treated for injuries to his head and leg (“post-traumatic neuritis of the right leg”). Dr P.O. testified that such damage to the leg normally appeared as a result of blows or contusions to that area. The doctor’s conclusion that no chest-bone fractures had been found was not backed up by X-ray evidence as required by law. Subsequent X-ray pictures were of too poor a quality to establish whether the bones were intact.
26. On 20 March 1996 another medical examination of G. was carried out at the request of the investigator. While no signs of ill-treatment were found, the diagnosis was “mild consequences of craniocerebral trauma with hypertonic syndrome” and G. was advised to undergo in-patient treatment. He refused, but in May 1996 he had to be admitted to the hospital as a result of the head injuries and neuritis in the leg. He stayed at the hospital until December 1996.
27. The court also found that, owing to various violations of the rules on criminal procedure, including the use of ill-treatment for the purpose of obtaining a confession, the self-incriminatory declarations made by the third suspect, G.C., who had been arrested in Russia, could not be accepted as evidence. No proper request had been made by the Moldovan authorities to their Russian counterparts to question G.C. and he could not properly be questioned by the Russian authorities because he was not a Russian citizen.
28. The court found that in all the statements made by the suspects there was no fact of which the prosecution had not already been aware before the questioning. Furthermore, G.’s complaint that he had been shown a video of D.C.’s statements, including those made during the crime scene investigation, had been made at a time when he was still a witness and had no right of access to the case file; he was not even supposed to have known of the existence of that video recording. The court concluded that the only way for G. to have known about the recording was by having seen it, which confirmed his claim that he had been shown it in order to ensure that his confession concurred with those of D.C.
29. On the basis of all the evidence, the court found that the statements made by the suspects during questioning had not been given voluntarily but had been taken from them illegally under duress and could not constitute valid evidence.
30. The court then turned to the witness statements. The witnesses had given evidence on three matters: (i) the quarrel at the bar; (ii) the existence of unfriendly relations between the accused and D. (motive for the crime); and (iii) the events at around 4 a.m. at the C. brothers’ parents’ house (alibi for G.).
31. The court examined a number of witnesses whose written statements made at the police station about the events at the bar apparently confirmed that the accused had initiated the fight and been aggressive towards D. A number of those witnesses declared in court that they had been threatened or otherwise forced by the police to sign witness statements, whereas they had not witnessed the events described in the statements. One of these witnesses was C.E., who stated that under pressure from the police he had signed a false witness statement about having seen the accused’s car being driven in the direction of the roundabout at about 3 a.m. on the date of the crime.
32. The statements taken from seven other witnesses by the police in 1995 were read out in court, including that of M.E. who had been with C.E. and had confirmed his statement (see the preceding paragraph). They referred mostly to the events at the bar. Since these witnesses were uncontactable abroad and the accused could not confront and properly challenge them, and in virtue of guarantees provided for in Article 6 of the Convention, the court rejected their statements as evidence.
33. Another witness, a former colleague of D. who had been accused by G. of beating him up in 1995, confirmed his earlier statements attributing the initiation of the fight to the accused. He had gone with D. to the police station and, rather than talking about subsequently returning for any further meeting, they had agreed to go home after visiting the police station. The witness C.S. declared in court that she had seen part of a quarrel at the bar between the accused and D. but that later (at around 3.30 a.m.), when she had been taken to work by the accused in their car, they had been calm and had not spoken about the policemen.
34. The court concluded that not a single witness, including D.’s colleagues, had confirmed the prosecution’s version that D. and the suspects had agreed after the incident at the bar to meet at a later time near the roundabout to continue the dispute.
35. Some of the police officers declared that G.C. had threatened D. with violence because of the administrative file opened against him. The court failed to see why in such circumstances and after allegedly being threatened that same night by the suspects, D. would have agreed to return for a fight, alone and without warning anyone, including the officer on duty at the police station, and without taking his weapon from the safe.
36. D.’s colleague, a police officer who was present during all the events at the bar, had not informed his superiors of any such meeting even though he would have been obliged to report anything suspect. Indeed, he did not confirm that such an agreement had taken place. Moreover, having called his wife from the police station, he had gone outside to be taken home by D. in his car but had not seen D. or his police car. He had run down the street hoping to see him, but passing by the roundabout several minutes later, he had not seen D. or anyone else there.
37. The court’s conclusion was that the incident at the bar, to the extent that it had happened, had ended there.
38. Other witness statements related to the alleged motives for the crime, for example, that relations between the suspects and D. were hostile on account of the criminal file opened against G.C. and that D. was worried about vengeance on their part. However, the court found no objective confirmation of such fears. On the contrary, D. had declared during questioning in the case in which G. had accused him of abduction in 1993 that he was on good terms with G.
39. In addition, while D. had opened a criminal investigation in respect of G.C. on 16 June 1994, he had not taken any measures in relation to him before handing the case to another investigator on 1 July 1994. There was no evidence in the file suggesting that G.C. had seen the materials in the file and thus found out about D.’s involvement in the case, and the case had been closed by another investigator in December 1994 following G.C.’s admission of having committed hooliganism. The court thus did not find any reasonable motive for revenge by G.C. based on that investigation.
40. Other witnesses called by the prosecution not only denied the allegation that G.C. had told them about killing D. while they were travelling in Russia, but declared that they had seen G.C. being beaten to obtain a confession from him. The court likewise rejected the evidence of a former officer from the police station in Comrat where D. had worked to the effect that he had been told by G.C. about the murder and its details. The court found that the witness was not impartial.
41. Another group of witnesses testified about the events at the house of the C. brothers’ parents. These witnesses (not only the parents) stated that they had butchered and processed a pig for about two hours and then taken the meat to the market at about 5.30 a.m. Two of them declared that they had been made to sign statements which did not entirely correspond to what they had witnessed, in particular being pressed by the police to indicate that the butchering had begun at a different time and to declare that G. had not been present. A meat seller at the market confirmed that at about 5.30 a.m. he had received meat from G.C. and that, judging by its weight, the butchering had taken between one and a half and two hours.
42. Considering all the above witness statements, the court found that at around 4 a.m., the time of the murder according to the prosecution, the suspects had been at C. brothers’ parents’ house and could not have been in the woods to commit the crime as alleged.
43. The report of the crime scene investigation, together with a video recording of the investigation, depicted each of the accused showing the place and the manner in which they had allegedly committed the crime. According to the testimony of one of the police officers who had taken part, the investigation had been carried out on 18 September 1995.
44. The court found a number of violations of the rules on criminal procedure in the investigation of the crime scene. In particular, the report had been signed and annexed to the case-file only at a much later stage, whereas by law, it should have been signed during or immediately after the investigation. The witnesses to the crime scene investigation confirmed that they had signed the report but that they had not been allowed near the crime scene and had seen the burnt-out car only from a distance. Contrary to legal requirements, they had not had any explanation of their rights and obligations as witnesses, they had not seen what the police had found on the scene and they had not seen the video recording of the event before signing the report and map.
45. In addition, while a car tyre print had been found at the crime scene, a copy had not been made. D.’s documents, found intact and “conspicuously displayed” nearby, had not been examined for fingerprints, even though they had a plastic cover that could have retained prints.
46. A piece of fabric found on a bush had been described but not located on the map and not subjected to expert analysis. The analysis of the suspects’ clothes which they had worn on that night did not reveal any element suggesting that they had been at the crime scene.
A petrol tank found at the scene had likewise not been analysed by the experts.
47. The prosecution had not produced to the court the video recording of the crime scene investigation. The map drawn did not indicate the exact position of a number of items and marks noted in the report as having been found at the crime scene. This made it impossible for the court to verify whether what the accused had indicated at the crime scene coincided with the map and the traces found.
48. The report of the investigation described the finding of a plastic tube in September 1995, but no details or measurements were given. It was only on 28 February 1996 that the investigator had presented as evidence a piece of plastic tubing which had allegedly been found at the crime scene and had been used for taking fuel from D.’s car in order to set the car on fire. The court rejected that evidence, along with the result of a forensic experiment that merely showed the possibility of evacuating fuel from the car’s tank in that manner.
49. In the light of these findings, the court excluded the crime scene report as a whole from the evidence on account of the serious procedural violations.
50. The court examined additional facts determined during the investigation. A witness testified that he worked as a security guard in a café near the roundabout and had seen a police car and another car stopping there and a fight taking place between their occupants. They had then all got back into their cars and shots had been heard. One car had left, followed by the police car, in the direction of Chişinău. He had not seen either of the two cars return in the direction of the wood where the burnt-out car was later found.
51. Other witnesses confirmed in court that they had heard shots that night but could not confirm their location.
52. The defence claimed that, after a brief initial investigation of the shooting, including a ballistics report, the relevant evidence had been withdrawn and examined in a new criminal case, in order to prevent the examination of alternative leads in the accused’s case. The court found no evidence of any ballistics report, but noted the presence of records of interviews of witnesses who had heard the shots. Moreover, a cartridge case was found in D.’s car, the origin of which had not been explained. The court concluded that initially there had been another lead in the case which had not been fully investigated.
53. The court also examined the evidence relating to the identification of the human remains found in the car and decided that the identity of the victim had not been established.
54. The court also found, from the statements of a number of witnesses, including police officers, that the assumption that the three suspects had committed the crime had emerged immediately and remained not just the main scenario under consideration, but in fact the only one examined during the entire investigation. In the court’s view, this was confirmed by the failure to examine in any detail the established fact of the shooting in the area of the roundabout.
55. The court also noted the general attitude of the local police officers towards the suspects displayed in their letter of 4 May 1995 (see paragraph 9 above), which had led it to conclude that the local police had formed a strongly negative attitude towards the suspects even before the crime had been committed. Added to that was the loss to the police station in the form of the police car that had been destroyed. The court concluded that that police station should not have been involved at all in the investigation of the crime. Nonetheless, most procedural steps in the initial phase of the investigation of the case had been performed by officers from that police station.
56. The court examined the expert reports on various items found in and around the car. It concluded that most of those reports had been filed in serious breach of the rules on criminal procedure (notably, the presumed identity of the human remains found in the burnt-out car had already been written on the materials presented to the experts, who were under the impression that the fact had already been established) or had been seriously undermined by the improper manner in which samples had been obtained during the crime scene investigation.
57. The court concluded that these reports neither confirmed, nor denied the identity of the victim. The objects found in the car and identified as belonging to the alleged victim were not inseparable from him and could have been placed there. Moreover, the prosecution had given no explanation as to why those who had committed the crime, having taken measures thoroughly to destroy all traces, had left D.’s personal documents untouched in an open space nearby, “conspicuously displayed” with his picture attached.
58. The court considered that credibility could be attached to the statements by the accused that illegal forms of pressure had been used on them and to those made by some witnesses about being forced by the police to give false statements.
59. The court also found that the investigation had been unilateral and biased against the suspects. It found that it had not been proved that the remains in the burnt-out car belonged to the alleged victim. While it had been proved that a crime had been committed by burning the car and an unidentified person inside it, there was no evidence to show that the suspects were the perpetrators of the crime. Most of the evidence gathered was unreliable owing to breaches of criminal procedure and could not serve as a basis for a conviction. On the basis of its findings, the court acquitted all three suspects.
60. On 31 January 2000 the Court of Appeal quashed the judgment of the Chişinău Regional Court and adopted a new one, convicting D.C., G.C. and G. It did not sentence G. because of his death in 1999.
61. The court recounted in detail the sequence of events as submitted by the prosecution. It then examined the parties’ submissions and the material in the case file and examined one witness (Dr P.O.). The court noted the contents of the interviews of each of the accused during the investigation (of G.C. on 1 and 7 November 1995, of D.C. from 17 to 20 September, 9 October and 10 November 1995 and of G., without specifying any specific date in his case but rather stating that he had given genuine confessions “throughout the investigation”).
62. It found that the three suspects had on a number of occasions made genuine and consistent confessions in the presence of their lawyers and that G.C. had written one of his confessions himself. D.C.’s confession of 19 and 20 September 1995 had been filmed.
63. The court considered that all of the above precluded the possibility of ill-treatment and that the suspects’ confessions had incorrectly been excluded from the evidence by the first-instance court. The suspects had changed their statements towards the end of the investigation only to avoid criminal responsibility.
64. In the court’s opinion, there was no evidence of any ill-treatment of the accused. The officers questioned in that regard all denied having applied such treatment and G.’s personal medical file from his hospital treatment in October 1995 did not establish any evidence of ill-treatment. Dr P.O. did not confirm the ill-treatment.
65. The officer who had questioned G.C. after arresting him in Russia testified to the fact that G.C. had been lawfully questioned and that he had not been subjected to any form of ill-treatment. Because G.C. had a Russian residence visa in his passport for 1995, the Russian investigating authorities had treated him as a Russian citizen and there had thus been no need for a special request by any Moldovan authority to that effect.
66. The court noted that all three suspects had made similar statements, differing only as regards their respective roles in committing the crime. The court considered that their subsequent denial of committing the crime and the slight variations in their versions of events was an attempt to avoid criminal responsibility.
67. The crime scene investigation had been conducted in the presence of witnesses and G.’s lawyer and was filmed. Both D.C. and G. had been able clearly to indicate the place and the manner of D.’s killing.
68. D.’s wife had identified the objects found in the burnt-out car and declared that the accused had often threatened her husband and family because of a criminal investigation opened by her husband against G.C. On 17 September 1995 the local police had called to inform her that her husband’s corpse had been found burned in the woods, together with his keys and documents. The court found that D. had indeed opened a criminal investigation against G.C. on 16 June 1994.
69. The car found at the crime scene belonged to the local police station. Blood samples from around the car coincided with the D.’s blood group. Moreover, no other disappearances had been reported during the relevant period in the region. There was no doubt in the view of the Court of Appeal that the corpse found in the car was D.
70. The court stated, without giving any further details, that a number of witnesses had “directly and indirectly shown that the accused were connected to the crime”. The statements of two other witnesses, excluded from the evidence by the first-instance court, were declared admissible by the Court of Appeal, although it did not specify why, or what those statements included.
71. Moreover, the witness statements of M.F. and S.P. had been read in court but unlawfully excluded from the evidence by the first-instance court.
72. The court also found that the first-instance court had not given reasons for its decision to reject from the file several types of evidence. The court rejected as unproven, without giving any explanation, all the other evidence taken into account by the first-instance court in favour of the accused. It found each of the accused, including G., guilty as charged and decided to discontinue the proceedings against G. because of his death.
73. On 30 May 2000 the Supreme Court of Justice upheld the judgment of the Court of Appeal.
74. The court first recounted in detail the prosecution’s version of events, the findings of the lower courts in the case and the arguments raised by the defence, including an alibi for the accused.
75. The court declared that it accepted only lawfully obtained evidence as the basis for its judgment, evidence which it found “sufficient to confirm the guilt of the accused [G.C.], [D.C.] and [G.] in having committed the acts of which they are accused”. It referred to the contents of the self-incriminating statements made by the accused on 9 October and 7 November 1995 and noted that these statements had been made in the presence of their lawyers. It confirmed the Court of Appeal’s acceptance of the self-incriminating statements as the “decisive evidence” in the case. The accused had made similar statements; the discrepancies relating to the role of each in committing the crime were the result of their attempt to transfer most of the guilt to the others.
76. The court also found that the accused had not withdrawn their statements until 6 March 1996, when they declared that they had been ill-treated. The first-instance court:
“gave credibility to the accused’s declarations, even though they had not been proved, while deciding, without any basis, that witnesses who testified that there had been no ill-treatment were interested persons and should thus have their testimony excluded.”
77. The court also noted the statements of several witnesses who confirmed that the quarrel at the bar had taken place, that the accused had initiated it and that they had left for the hospital, while D. had left for the police station after 3 a.m. The testimonies largely coincided, as to the time and sequence of events, with the initial statements by the accused.
78. The witness C.S. confirmed that the accused had driven her to the hospital after 3 a.m. and confirmed the quarrel at the bar. Her statements largely coincided with those made by D.C. on 17 September 1995. The witnesses C.E. and M.E. stated that they had seen the accused in their car and the police car driving towards the roundabout shortly after 3 a.m.
79. The officer who had been on duty that night at the police station noted that D. and his colleague M. had come to the station at around 3.22 a.m. and that minutes later D. had left in the car.
80. Officer M. (se paragraph 8 above), remembered one of the accused shouting in the Gagauz language “I will burn you”. The officer did not speak that language but remembered the word and had later found out its meaning.
81. The court noted that D. had opened a criminal investigation against G.C., which might have constituted a motive for revenge.
82. The court examined various pieces of evidence which proved, in its view, that the human remains found at the crime scene were those of D.: an expert report had found that the corpse was, in all probability, that of a man; the blood stains found coincided with D.’s blood group; and items found in and around the car, such as keys and documents, belonged to D. and had been recognised by his wife.
83. Lastly, the court declared that the above and “other evidence taken into account by the Court of Appeal” proved the accused’s guilt. No further details were given.
84. The relevant provisions of the Code of Criminal Procedure in force at the material time read as follows:
“Criminal proceedings cannot be instituted, and those already instituted shall be discontinued:
...
(8) against a deceased person, with the exception of those cases where the proceedings are necessary for the rehabilitation of the deceased ...”
“...
Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents.”
“... A witness who refuses to testify shall be liable in accordance with Section 197 of the Criminal Code, and shall be liable for falsely testifying in accordance with Section 196 of the Criminal Code. ...”
“... When the accused is first questioned after being taken into custody, the questioning may take place only in the presence of defence counsel, whether chosen or officially appointed.”
“The minutes of an investigatory procedure shall be filed during the procedure or immediately thereafter. ...
After the end of the questioning the audio or video recording shall be reproduced in full for the person questioned. ... The audio or video recording shall end with a declaration by the person questioned confirming the correctness of the recording.”
“...
The following have the right to introduce a revision request:
...
(b) the spouse and other close relatives of a convicted person, even after his or her death.”
85. The relevant provisions of the Act on compensation for damage caused by the illegal acts of the criminal investigating authorities, prosecuting authorities and courts (no. 1545 (1998)) read as follows:
“(1) Pursuant to the present Act, compensation shall be payable for pecuniary and non-pecuniary damage caused to a natural or legal person as a result of:
(a) unlawful detention or arrest ...;
(b) unlawful conviction ...;
...
(d) unlawful administrative detention or arrest ...”
“(1) At the time of notifying about ... an acquittal ..., the natural person (in case of his or her death the heirs) ... shall be handed a notice in a typical form explaining their right and procedure for asking reparation for damage caused.”
“(1) The prosecutor responsible for the criminal investigation or the hierarchically superior prosecutor shall make an official apology in the name of the State to the groundlessly prosecuted person.
(2) Official apology of the prosecutor shall be made in the case where:
...
(c) an acquittal becomes final; ...
(3) The prosecutor shall make an official apology in written form to the victim of the unlawful acts or to the latter’s close relatives.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90961
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MARREK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Wilhelm Marrek, is a German national who was born in 1927 and lives in Fuldatal. He is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 4-5, ECHR 2008-...).
In January 1945 the applicant’s family, in view of the Red Army’s approach, had to flee Willenberg (at present Wielbark in Poland). This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3).
When escaping the Red Army, the Marrek family were stopped by Polish and Soviet militiamen. The applicant maintains that his father was arrested and first taken to a camp in Majdanek and then to the Warsaw ghetto where he died in July 1945.
The applicant’s grandmother decided to return with her family to their farm. In the spring of 1947 the applicant’s family, after having experienced several hostile attacks from local militiamen, left their house. A few days later two Polish families moved in.
The applicant further submits that they were arrested several times, treated as an easily available workforce and not allowed to join the rest of the family living in Germany. In 1955 the applicant obtained an engineering degree. This also prompted the authorities to refuse him permission to leave Poland.
In January 1957, after mediation by the International Red Cross, he was finally granted permission to leave Poland.
The applicant has still not been allowed to return to his home and has been refused restitution of his family’s property.
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).


ITEMID: 001-5458
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ANDREWS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is engaged in the retail sale of handguns from shop premises and by mail order in Yorkshire. He trades in partnership with his wife. The business made a profit of £6,511 in the financial year ending 30 April 1994, a profit of £3,696 in the year ending 30 April 1995, and no profit in the year ending 30 April 1996.
The consequences of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below) - are that the applicant is unable to derive handgun-related income from his business, and that the value of the goodwill and assets of the business has depreciated. The applicant claimed compensation pursuant to the legislative schemes in respect of his stock of handguns. No compensation is payable for the reduction in value of the applicant’s business.
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.


ITEMID: 001-79017
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TRZNADEL v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1970 and lives in Wrocław.
5. On 15 April 1999 the applicant was detained on remand until 14 July 1999 on suspicion of two attempted murders. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings, and on the risk of the applicant’s going into hiding as he had done previously.
6. On an unknown date a bill of indictment was lodged. The applicant was charged with two attempted murders and possession of an unlicensed weapon.
7. Subsequent decisions on the extension of the applicant’s pre-trial detention were taken on 10 June 1999, 8 September 1999, 10 December 1999, 9 March 2000, 23 May 2000, 12 December 2000, 14 September 2000, 12 March 2002, 27 June 2002, 13 September 2002, 16 December 2002, 21 March 2003, 27 June 2003 and 16 December 2004.
8. In all the above-mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order. In some of them the courts also referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other co-accused and exertion of unlawful pressure on witnesses by the applicant. They also stressed that the applicant had previously gone into hiding.
9. The applicant appealed against the decisions extending his detention on several occasions. All of his appeals were dismissed.
10. On many occasions the applicant requested release from detention or the imposition of a more lenient preventive measure. His requests were dismissed.
11. Hearings were held on the following dates: 9 November 1999, 10 December 1999, 24 February 2000, 9 March 2000, 23 May 2000, 20 June 2000, 21 July 2000, 14 September 2000, 17 October 2000, 16 November 2000, 12 December 2000 and 30 January 2001.
12. On 2 February 2001 the Legnica Regional Court changed the legal qualification of the offences and convicted the applicant of attempted robbery endangering the lives others as well as possession of a weapon. It sentenced him to 10 years’ imprisonment. Both the prosecutor and the applicant lodged appeals.
13. On 29 April 2002 the Wrocław Court of Appeal quashed the judgment and remitted the case.
14. A hearing was held on 13 September 2002. A hearing of 18 October 2002 was cancelled due to a lay judge’s absence. A hearing of 15 November 2002 was adjourned since the accused who had been detained had not been transported to the hearing, and a hearing of 17 January 2003 was adjourned since the applicant had challenged the impartiality of the judges. Subsequent hearings were held on 14 February 2003, 21 March 2003, 25 April 2003, 30 May 2003, 27 June 2003, 12 September 2003, 10 October 2003, 21 November 2003, 5 December 2003 and 14 January 2004.
15. On 21 January 2004 the Legnica Regional Court gave a judgment. It convicted the applicant of one attempted murder and acquitted him of the other attempted murder and possession of an unlicensed weapon. The prosecutor and the applicant appealed.
16. On 5 May 2004 the Wrocław Court of Appeal quashed the judgment and remitted the case.
17. Subsequent hearings were held on 28 July 2004, 7 September 2004, 23 September 2004, 12 October 2004, 26 October 2004, 16 November 2004, 23 November 2004, 7 December 2004, 16 December 2004, 11 January 2005, 25 January 2005, 8 February 2005, 1 March 2005, 12 March 2005, 29 March 2005, 10 April 2005, 26 April 2005, 13 May 2005, 31 May 2005 and 21 June 2005.
18. On 23 June 2005 the Legnica Regional Court convicted the applicant of two attempted murders and possession of a weapon and sentenced him to twelve years’ imprisonment. On 9 August 2005 the applicant lodged an appeal which he had drafted himself. On 16 August 2005 the applicant appealed through a lawyer.
19. On 17 February 2006 the Wrocław Court of Appeal upheld the judgment. The judgment is final.
20. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-139383
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: P. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant is a British national, who was born in 1987 and lives in York. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Ms A-M. Jolly of the Howard League for Penal Reform, London, and, subsequently, by Mr C. Callender, of Steel and Shamash, Solicitors London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwealth office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant’s parents were heroin addicts. He was taken into local authority care when he was still a baby and adopted. As a young adolescent he became drug dependent and involved in offending behaviour, spending increasingly long periods of time in custody.
4. In August 2005, aged 18, the applicant was sentenced to two years’ detention for a series of offences. When serving this sentence, he demonstrated serious personality problems including engaging in repetitive, serious and dangerous self-harming behaviour. In a report dated 11 October 2006, Professor Coid, a forensic psychiatrist instructed on behalf of the applicant, noted the repetitive self-harming behaviour of an “extreme and dangerous nature” and that he was at a “serious risk of suicide”. Professor Coid diagnosed a psychopathic disorder under the Mental Health Act 1983 (hereinafter “MHA 1983”). Whilst the applicant was not yet amenable to psychotherapy, Professor Coid recommended that he be transferred to hospital for assessment and treatment under section 47 of the MHA 1983.
5. From the end of 2006 to early 2007 there was no agreement between the psychiatrists as to the applicant’s diagnosis or treatment. Since he had spent much of his life in Wales, it was thought that any psychiatric hospital treatment would be in Wales so he was examined by Dr. Williams, the Director of Mental Health Services for the National Health Service (“NHS”) Trust which covered South Wales.
6. Dr. Williams stated in a three-page letter dated 23 January 2007 that, although the applicant had antisocial and borderline personality traits, he was not suffering from a psychopathic disorder and would not be amenable to psychotherapy. He also took the view that there was no evidence that the applicant would benefit from hospital treatment or that his condition would improve as a result. The applicant did not require pharmacological treatment therapy and was not likely to respond to psychological treatments. Indeed, the applicant’s history had shown that his behaviour badly deteriorated in institutions, so that a transfer to hospital would likely result in his detention in a maximum security mental health setting, which Dr. Williams was convinced would not be in the applicant’s best interests.
7. The Court of Appeal in later proceedings confirmed that this diagnosis meant that it was not possible to transfer the applicant to hospital for treatment under sections 37, 38, 47 or 48 of the MHA 1983.
8. The applicant was released on licence on 25 January 2007.
9. Between 2 March 2007 and 25 June 2008, the applicant was detained at the Young Offender Institution Feltham ( “Feltham YOI”) on remand on serious criminal charges, including robbery, and then into custody following his conviction by the Crown Court in July 2007 of false imprisonment and dangerous driving.
10. Feltham YOI received a copy of the reports of Professor Coid and Dr.Williams. The applicant was psychiatrically assessed as suitable for the Assessment, Care in Custody & Teamwork (“ACCT”) care-planning system for prisoners at risk of self-harm. This system was designed to ensure that relevant prisoners received assessment, care, supervision and treatment commensurate with an ongoing process of risk assessment by a multi-disciplinary team trained in the ACCT procedures. The ACCT system could include search provisions, restrictions on possessions, provision of accommodation specially adapted to reduce risk of self-harm, as well as interaction and monitoring appropriate to the risk. The applicant was moved within Feltham YOI depending on his health: the mental health in-patient Unit in Feltham YOI was a restrictive place of safety for periods of acute risk and he was moved to more open environments when he improved.
11. The applicant displayed, it appears from the beginning, serious and dangerous self-harming behaviour at Feltham YOI. An extract from his medical and prison records for 22-26 March 2007 is demonstrative:
“22 March: medical records state that he inserted a pin in his mouth, which he removed when he calmed down. He later put a pencil in his mouth. The prison records record that he put a broken pencil in his mouth.
24 March: the medical records state that [the applicant] opened an old abdominal wound; he claimed to have inserted two staples into it. He was taken to [hospital]. He also reported that he had inserted staples underneath his right eye. Wound stitched at [hospital]. The staples on the right side of his face were not taken out as he needed an operation, as he had inserted them through his mouth. The prison records state that he had got hold of a screw and picked off the scab on his arm and continued to screw it in his arm. The officer asked him to hand over the screw but he declined. A note timed at 19.30 states that he continued to put staples into an open wound. At 21.00 he was told he would go to hospital.
25 March: the medical records state that he barricaded the door with a mattress. He removed a piece of the door and used it to harm himself, deepening an existing wound on his right arm causing it to bleed. He was taken to [hospital]. He was refusing meals, stating that he was on hunger strike.
26 March: the medical records state that he banged his head on the cell gate. According to the prison record, at 13.30 he was kicking the sink. When asked why, he stated that he wanted to break his foot.”
12. The records also show that the applicant inserted foreign bodies into his penis on multiple occasions, including a screw on 19 September 2007, forced a piece of glass into his urethra on 7 October 2007 and severed the tendons of both feet on 10 October 2007. The applicant inserted dirt into his self-inflicted wounds causing repeated infections.
13. The applicant claims that he attempted suicide on at least five occasions and threatened to commit suicide at other times. The Government denied that the applicant ever attempted suicide whilst at Feltham YOI.
14. On 25 October 2007 the applicant’s then representatives, the Howard League for Penal Reform, sent a “letter before claim” challenging the failure of the Secretary of State to provide a safe environment for the applicant. Noting that the applicant had over 15 surgical interventions in the past 6-7 weeks, other serious incidences of self-harm and that he had made suicide threats, they argued that the prison was not a suitable environment for him.
15. Professor Coid, instructed on the applicant’s behalf, reported on 8 November 2007, noting that the applicant’s behaviour had rapidly deteriorated since his return to custody. He confirmed his earlier view that the applicant’s condition amounted to mental illness and psychopathic disorder within the meaning of the MHA 1983, so that the applicant should be urgently transferred to a hospital for treatment under section 48 of that Act. He reiterated that the applicant was not yet amenable to psychotherapy.
16. On 19 December 2007 the Treasury Solicitor responded to the “letter before claim” of the applicant’s representatives’ noting that the applicant was in good health, that he had self-harmed less lately, that his last visit to hospital was on 3 November 2007 and that his behaviour, conduct and mood had improved allowing his transfer to a normal room. The applicant’s representatives did not take any further action at that time.
17. On 10 March 2008 Dr. Lewis, a Consultant Forensic and Child and Adolescent Psychiatrist and the in-house psychiatrist at Feltham YOI, wrote to the Specialist Commissioner of the Mental Health Services expressing concern about the applicant’s deteriorating health and requesting his transfer to a hospital. It was the opinion of the clinical team at Feltham YOI that the applicant met the criteria for antisocial and borderline personality disorder and required specialist treatment in a hospital setting. He was a prolific self-harmer, the situation having become more serious over the last months. The health services in Feltham YOI considered that they could not provide adequate care for the applicant in prison and that he required a transfer to a secure centre specialising in the treatment of personality disorders. Dr. Lewis considered, contrary to Dr. Williams, that the applicant would benefit from hospital treatment and that his history did not exclude this option, as he had only been in one psychiatric hospital setting and that was when he was very young. Since the Specialist Commissioner had indicated that she could not consider Dr. Lewis’ request without Dr. Williams’ view, Dr. Lewis requested Dr. Williams to conduct another assessment.
18. In the meantime, Dr Huckle a consultant psychiatrist, assessed the applicant at the request of the Crown Court due to sentence him (offences committed in 2007). His report dated 15 March 2008 found that the applicant was suffering from a psychopathic disorder as defined in the MHA 1983. He concurred with Professor Coid that the applicant was detainable and should be admitted to hospital for further assessment and treatment of his serious personality disorder. This could be achieved once a suitable placement was identified under section 38 of the MHA 1983 or, if sentenced to imprisonment, under section 47 of the MHA 1983.
19. Dr. Williams re-assessed the applicant as requested in March 2008. In his report of 1 April 2008 he revised his earlier opinion about the applicant’s condition and about the prospects of treatment, stating that there had been some change since he reviewed the applicant, so that he considered that a treatment trial would be worth considering (section 38 of the MHA 1983). However, Dr. Williams queried whether or not the applicant was a patient for whom his Trust (Welsh) was responsible. The applicant had indeed been born and had spent much of his life in Wales, but he had informed Dr. Williams, during his re-assessment interview in March 2008, that he had re-registered in 2007 with a medical practice in England. Enquiries confirmed this and, as a result, the applicant’s case had to be transferred to Sussex NHS Trust which had, in turn, to re-assess the applicant and, if relevant, identify an appropriate and available hospital place.
20. On 7 April 2008 Dr. Lewis followed up with another letter to the Specialist Commissioner recommending that the applicant be considered for placement in a specialist personality disorder unit. His mental health had deteriorated and his self-harming had increased whilst in prison: any delay caused by his transfer to another NHS Trust had to be kept to a minimum.
21. On 28 April 2008 the applicant’s representatives wrote to the Treasury solicitor. They recognised that the applicant’s behaviour was difficult and challenging and that staff at Feltham were seeking to put in place, within limited resources, skills and training, as safe a regime and environment as possible, but the truth was that this was insufficient to protect the applicant’s health and life. They enclosed a report dated 10 April 2008 by Dr. Bell, a consultant in intensive care and anesthesia, who had been instructed by the applicant to report on whether his self-harming behaviour was life-threatening. Dr. Bell noted that staff in Feltham YOI considered the severity and frequency of the applicant’s self-harming placed him in a “completely different category” from virtually all other self-harmers whom they had encountered. Dr. Bell’s report examined the risk posed to the applicant’s life, concluding:
“9.1 The nature and pattern of self-harm inflicted by [the applicant] are clearly disquieting to any external reviewer and indicative of an extremely disturbed mindset.
9.2 His current injuries and their sequelae place him at risk of renal failure due to obstruction of the urinary tract and at constant risk of life-threatening infection from necrotizing fasciitis, urinary tract sepsis, bacterial endocarditis and deep-seated pelvic infection. The risk of these complications is enhanced not only with each new additional injury but also by the multiple retained foreign bodies within the tissues which create susceptibility to colonisation by bacteria and subsequent infection from any distant source of sepsis carried around the body by the circulation.
9.4 He is also currently at risk of losing limbs through refractory infection and the use of his penis for normal urination and sexual function.
9.5 [His] life is also in jeopardy from exsanguination with either intentional or accidental arterial damage during further self-harm.
9.6 This pattern of self-injury will predictably induce a state of chronic ill-health within a short time-frame and leave [the applicant] more vulnerable to the above complications of his injuries. The cycle will then become self-fuelling, inevitably culminating from one complication or another in [the applicant]’s death.
9.8 There also appears to be a more immediate urgency in placing [the applicant] in the short-term within a hospital environment to ensure optimal medical and nursing management of both his abdominal wound and the urinary tract foreign bodies and strictures due to scarring, which are capable of causing acute urinary tract obstruction and severe septicaemia. Such optimal management depends very much on [the applicant]’s compliance with advice and cares, and provision of appropriate psychiatric and psychological support whilst within any conventional hospital setting. The required duration of stay is not possible to calculate, [...] but the endpoint should be one of satisfactory healing of his current injuries and a greatly reduced frequency and magnitude of further self-harm with a commitment to overcoming this pattern of behaviour over the long term. The severity of the abdominal wound and urinary tract injuries, coupled with the instability of his mental health status which will predictably lead to further self-harm, would suggest that this option should be pursued within days rather than weeks.”
Dr. Bell added a postscript to his report:
“Since completion of this report, I have been informed by the Howard League that there has been an escalation in [the applicant’s]’s pattern of self-harm following news of his birth mother’s death. Given the extreme vulnerability of this individual to significant life-threatening complications with the level of injury at the time of my assessment, it should be apparent that the hospital-based care specified in 9.8 should be expedited as a matter of urgency.”
22. A letter of 28 March 2008 by Christian Brown, a specialist registrar in urology, was appended to Dr. Bell’s report and stated, inter alia:
“Although there is currently no evidence of urethral stricture or bladder injury over a period of time, it is almost certain that he will develop a urethral stricture. ...If he continues to abuse his body in this way, it may lead to a poor bladder emptying which in turn can cause renal failure and death.
While currently none of [the applicant’s]’s urological incidents have been a risk to his life, it is only a matter of time until he develops sepsis, a urethral stricture, renal failure or death.
It has been the opinion of the Urology Department here...that something more definitive needs to be done for [the applicant]’s psychological care. On each occasion that his bladder is cleared of foreign bodies, it is usually only a week or two before he is readmitted having inserted something else ...”
23. On 6 May 2008 the applicant applied for leave to take judicial review proceedings to obtain an order that he be removed from Feltham YOI. He cited the Secretary of State (responsible for Feltham YOI) and Sussex NHS Partnership Trust as defendants. At this point, the applicant had been hospitalised 90 times in the previous 15 months.
24. On 27 May 2008 Dr. Noon, a consultant forensic psychiatrist, advised the Sussex NHS Trust that the applicant suffered from a severely abnormal personality and reached a high diagnostic threshold for specific personality disorder types, which suggested that he might reach a threshold for psychopathic disorder classification. Given his background of frequent and severe self-harm, Dr. Noon concluded that it was appropriate to admit the applicant for a period of in-patient assessment under section 38 of the MHA 1983. He confirmed that a bed would be available at Ashen Hill hospital within the four-week period to which section 38 referred.
25. On 5 June 2008 the Crown Court made a hospital order under section 37 of the MHA 1983 for the applicant’s admission to Ashen Hill Psychiatric Hospital. The applicant was transferred to that hospital on 25 June 2008. He then withdrew his proceedings against the Trust.
26. On 30 June 2008 the High Court refused leave to apply for judicial review. The court considered the manner in which his claims were expressed to be strikingly unhelpful. However, since he had been transferred to hospital, his representatives confirmed that the purpose of the action was now to seek an order that there be an investigation into what had occurred, including how the relevant agencies could work better, which would serve a real public interest. The High Court considered this to be rather an afterthought to the principal claim. The applicant sought damages for a breach of Articles 2, 3 and 8 of the Convention.
27. The High Court clarified that the Secretary of State had no power under section 48 of the MHA 1983 to transfer the applicant from Feltham YOI to a hospital because, unlike section 47, it did not apply to prisoners who suffered from psychopathic disorders.
28. The High Court considered that Article 2 had not been engaged. While according to Dr. Bell’s bleak summary, the applicant would undoubtedly put his life at risk if he continued to self-harm in the way that he had, his life was not imminently at risk. Nor was it a case of a “near-death experience” such as a failed suicide attempt.
29. Likewise, there was no arguable breach of Article 3 by the Secretary of State and therefore no duty to hold an inquiry. The High Court remarked that the Secretary of State had accepted the version of events advanced by the applicant. This, supplemented by the many reports done and the records which could still be produced from Feltham YOI and the hospital, meant that there could be no doubt about the facts. There was no suggestion in the documents that the applicant’s injuries had not been promptly and skilfully treated or, indeed, that it was detention at Feltham YOI which had caused the applicant to harm himself. Had the applicant wished to complain about his treatment in detention, he could have complained under the Detention Centre Rules and onward to the Prison and Probation Service Ombudsman, who could have conducted an independent inquiry. The wider “lessons learned” objective of the action fell outside the scope of Article 3 (Banks v. the United Kingdom (no. 21387/05 (dec.) 6 February 2007).
30. In October 2008 the High Court granted leave to appeal limited to the claim that the Secretary of State should hold an inquiry. By judgment of 6 July 2009 the Court of Appeal accorded leave to apply for judicial review but dismissed the substantive application. The applicant had confirmed to his representatives that he wanted an explanation about his treatment in Feltham YOI and that an inquiry would have a wider public benefit. His representatives made a statement to the court that they were concerned about the treatment and conditions experienced by the applicant and other prisoners.
31. As regards the Article 2 complaint, the Court of Appeal considered:
“40. This case is not a case of attempted suicide. [The applicant] did not attempt suicide. The medical evidence was that his self-harming, if continued, could lead to life-threatening injury or disease. His medical condition, and his actions, cannot in my judgment be assimilated to cases of suicide and near suicide. It cannot be said that there was a ‘real and immediate risk’ to [the applicant’s] life while he was at Feltham. The risk was real but not immediate.”
32. It clarified that serious injury, in the absence of a risk to life, could not give rise to any relevant duty by virtue of Article 2. There was, therefore, no necessity under Article 2 to conduct an inquiry.
33. The Court of Appeal also found that no Article 3 investigative duty could be imposed on the Secretary of State for three main reasons. In the first place, it agreed with the High Court that there was no evidence of an “arguable breach” or of a “credible assertion” of a breach of Article 3. Secondly, the exclusion of psychopathic disorders from section 48, which precluded the applicant’s transfer to hospital under that provision, was not the proper subject of an Article 3 inquiry. Thirdly, even if there had been an arguable breach of Article 3, there could be no investigative duty because all the relevant facts in the case were known.
34. In particular, the only complaint that could be made was that:
“50. ... [the applicant] should have been transferred to a psychiatric hospital earlier. But, as I have pointed out, in not doing so, the Secretary of State was acting in accordance with Dr Williams’ medical opinion. The action or inaction of the executive based on medical advice of an appropriately qualified doctor, as Dr Williams was, cannot amount to a breach of Article 3. Once Dr Williams had changed his opinion, steps were taken to transfer [the applicant] to a hospital, but any delay then was attributable to Sussex NHS Partnership Trust and the need to meet the requirements of section 37...”
35. As to whether an inquiry was needed, the Court of Appeal considered the applicant’s case remarkably similar to the above-cited case of Banks v. the United Kingdom (cited above). The allegations of a breach of Article 3 could be dealt with by the combination of criminal (if relevant) and civil proceedings. Any wider interest inquiry (including to publicise the alleged lack of appropriate care for persons such as the applicant in a YOI such as Feltham) was a matter for public and political debate which fell outside the scope of Article 3 of the Convention.
36. In any event, the Court of Appeal saw no need for an investigation:
“In the present case, I see no need for an investigation. The facts relating to [the applicant]’s detention in Feltham and the reasons why he was only transferred after Dr Williams’ re-assessment are known. [The applicant’s Counsel] was pressed to identify what an inquiry might reveal that was not already known. In my judgment, he was unable satisfactorily to do so. The summary of the applicant’s case, set out in the Addendum to his Grounds, does not include a formulated allegation of breach beyond the assertion that the Secretary of State was in breach of her protective obligation.”
37. In conclusion, the Court of appeal summarised its findings:
“58. Article 2 was not engaged in this case, where there was no immediate risk to [the applicant]’human rights inquiry has significant resource implications, a matter of growing concern when the resources of public authorities are increasingly constrained. Good reason for an Article 3 inquiry must be shown. In the present case, all the relevant facts are known: why [the applicant] was kept at Feltham and not transferred until after Dr Williams had re-assessed him and why there was some delay thereafter.”
38. On 7 December 2009 that court refused leave to appeal.
39. On 29 June 2009 Dr. Noon submitted a psychiatric report to the Mental Health Review Tribunal in which he indicated that the applicant’s level of self-harm was “markedly better” than when he was in Feltham YOI. In January 2010 the applicant was being treated in a secure psychiatric unit. On 15 September 2010 he was assessed as being suitable for admission to Broadmoor High Security Hospital.
40. Sections 37 and 38 of the MHA 1983, as in force at the relevant time, provided that a court may, after convicting a defendant, make an order or an interim order that the individual be treated in hospital instead of sentencing him to a term of imprisonment.
“37. – Powers of courts to order hospital admission...
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order...
(2) The conditions referred to in subsection (1) above are that-
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act ; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section...
(4) An order for the admission of an offender to a hospital (in this Act referred to as ‘a hospital order’) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital in the event of such an order being made by the court, and for his admission to it within the period of 28 days beginning with the date of the making of such an order ; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.
38. - Interim hospital orders
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment (other than an offence the sentence for which is fixed by law) or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment and the court before or by which he is convicted is satisfied, on the written or oral evidence of two registered medical practitioners-
(a) that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and
(b) that there is reason to suppose that the mental disorder from which the offender is suffering is such that it may be appropriate for a hospital order to be made in his case,
the court may, before making a hospital order or dealing with him in some other way, make an order (in this Act referred to as an “interim hospital order”) authorising his admission to such hospital as may be specified in the order and his detention there in accordance with this section.
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(5) An interim hospital order-
(a) shall be in force for such period, not exceeding 12 weeks, as the court may specify when making the order ; but
(b) may be renewed for further periods of not more than 28 days at a time if it appears to the court, on the written or oral evidence of the responsible medical officer, that the continuation of the order is warranted ;
but no such order shall continue in force for more than six months in all and the court shall terminate the order if it makes a hospital order in respect of the offender or decides after considering the written or oral evidence of the responsible medical officer to deal with the offender in some other way.”
41. Sections 47 and 48 of the MHA 1983 empower the Secretary of State to direct that an individual who is serving a sentence of imprisonment, or who is on remand, be removed to, and detained at, a hospital:
“47. Removal to hospital of persons serving sentences of imprisonment, etc.
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners-
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment ; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition ;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital (not being a mental nursing home) as may be specified in the direction ; and a direction under this section shall be known as " a transfer direction "
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(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.
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(5) References in this Part of this Act to a person serving a sentence of imprisonment include references-
(a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings (other than an order under any enactment to which section 46 above applies) ; ...
48. Removal to hospital of other prisoners.
(1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment, the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment.
(2) This section applies to the following persons, that is to say-
(a) persons detained in a prison or remand centre, not being persons serving a sentence of imprisonment or persons falling within the following paragraphs of this subsection ;
(b) persons remanded in custody by a magistrates’ court ; ...
(3) Subsections (2) to (4) of section 47 above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section.”
42. Following the enactment of the Mental Health Act 2007, section 48 of the MHA 1983 has been amended to permit the power to apply to “persons suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”.
43. Young Offender Institutions (“YOI”) form part of the juvenile secure estate in the United Kingdom. YOIs are managed by the prison service and hold young offenders between the ages of 15 and 21. There are some differences between YOI and adult prison regimes: the YOI has a better staff/offender ratio; at least 25 hours of education per week; and its overall objectives are helping the detainee improve behaviour, develop practical skills and prepare for employment.
44. A prisoner can make a complaint about treatment whilst in detention under the Young Offender Institution Rules 2000 (“the 2000 Rules”). He may complain, initially, to for example, a member of staff or to the Independent Monitoring Board; he can also make a formal written complaint under Rule 8 of the 2000 Rules); and any prisoner can complain about his treatment in detention to the Prisons and Probation Ombudsman.
45. A prisoner can also bring a civil action about treatment in prison. Under the common law, the prison authorities owe a duty to take reasonable care for the safety of those in custody and, in particular, to take reasonable care to prevent a prisoner from taking his own life or harming himself deliberately, irrespective of whether the prisoner is mentally disordered or of sound mind (Commissioners of Police for Metropolis v Reeves (Joint Administratix of Estate of Martin Lynch, Dec.) [1999] UKHL 34). A medical practitioner also owes a duty of care to a person that he or she treats or assesses and that liability may arise if the standard of care falls below the standard to be expected of that practitioner in accordance with a reasonable body of medical opinion (Bolam v Friern Hospital [1957] 2 All ER 118; and Bolitho v City & Hackney Health Authority [1988] AC 232).
46. If the prisoner can prove that his conditions of confinement have caused him injury, physical or psychiatric, resulting from the alleged negligence, he may claim damages for any damage suffered. He may even claim exemplary damages in the event of oppressive, arbitrary or unconstitutional action by the servants of the government.