ITEMID: 001-57602
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1981
DOCNAME: CASE OF X. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;No violation of Art. 5-1;Not necessary to examine art. 5-2;Just satisfaction reserved
TEXT: 8. The applicant, a United Kingdom citizen born in 1934, died in 1979. At the time of lodging his application with the Commission he was detained in Broadmoor Hospital, a special secure mental hospital for the criminally insane.
His complaints were directed against his recall to Broadmoor Hospital in April 1974, following a three-year period of conditional discharge. He claimed that his recall was unjustified, that he was not promptly given sufficient reasons for his re-detention, and that he had no effective way of challenging the authorities’ action.
9. In England and Wales the law relating to the confinement of persons of unsound mind, and more particularly the compulsory detention of patients concerned in criminal proceedings, is contained in the Mental Health Act 1959 ("the 1959 Act"). At present, a review of the relevant provisions of the Act is under way.
A "patient" is defined by section 147 par. 1 as "a person suffering or appearing to suffer from mental disorder"; according to section 4 par. 1, "mental disorder" means "mental illness, arrested or incomplete development of mind, psychopathic disorder, any other disorder or disability of mind". The "responsible medical officer" (as referred to in subsequent paragraphs of this judgment) is defined by section 80 par. 1 as being "the medical practitioner in charge of the treatment of the patient".
10. Section 60 par. 1 of the 1959 Act empowers criminal courts to direct where appropriate that a person convicted of an offence shall be dealt with by way of medical treatment rather than by way of punishment, if necessary in a special secure mental hospital for the criminally insane (section 40 of the National Health Service Reorganisation Act 1973). Thus, where a person is convicted before a Crown Court - prior to 1971, a Court of Assize or Quarter Sessions - of an offence other than an offence the sentence for which is fixed by law, the court may, pursuant to section 60 par. 1, by order (hereafter referred to as a "hospital order") authorise his admission to and detention in such hospital as may be specified in the order. The conditions which must be met include the following:
a) the court must be satisfied, on the written or oral evidence of two medical practitioners (at least one of whom has special experience in the diagnosis or treatment of mental disorders), that the offender is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality; and that the mental disorder is of a nature or degree which warrants the detention of the patient in a hospital for mental treatment;
b) the court must be 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 a hospital order.
11. Under section 65 par. 1, where it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public, the court may by further order (hereafter referred to as a "restriction order") direct that the hospital order shall be subject to special restrictions in respect of discharge, either without limit of time or during such a period as may be specified in the order. Before making a restriction order, the court must hear oral evidence from at least one of the medical practitioners mentioned above.
12. Where a restriction order has been made, responsibility for the control of the patient, though not for his treatment, is vested in the Home Secretary.
Thus, the Home Secretary has special powers under section 66 of the 1959 Act in connection with the discharge of restricted patients. If he is satisfied that the restriction order is no longer required for the protection of the public, he may direct that the patient shall cease to be subject to the special restrictions (sub-section 1). While a restriction order is in force, he may, "if he thinks fit", discharge a patient from hospital either absolutely or subject to certain conditions; where he absolutely discharges him the restriction order ceases to have effect (sub-section 2). If the discharge is conditional, the Home Secretary may, at any time during the continuance in force of the restriction order, by warrant recall the patient to hospital (sub-section 3).
13. According to section 66 par. 6 to 8 of the 1959 Act, the Home Secretary may at any time refer to a Mental Health Review Tribunal for their advice the case of a patient who is for the time being subject to a restriction order. The patient himself may not apply directly to such a Tribunal, but he may ask the Home Secretary in writing to do so. Where so asked by a patient who is detained in hospital, the Home Secretary must refer the patient’s case to the Tribunal within two months of the receipt of the request unless during that period he discharges the patient absolutely or conditionally. Such requests may only be made at certain specified intervals, namely one year after the date of the relevant hospital order, one year after that and thereafter once every two years. In the case of a patient conditionally discharged and subsequently recalled, application may be made six months after readmission, one year after readmission and thereafter biennially.
14. Mental Health Review Tribunals, set up under section 3 of the 1959 Act, consist of a lawyer, a psychiatrist (independent of the detaining authority who examines the patient) and a third member with suitable qualifications. One of the functions of such a Tribunal is to advise the Home Secretary periodically about the patient’s condition (see the preceding paragraph). The Home Secretary takes this advice into consideration, but is not bound by it. He may therefore reject the advice where medical opinion is not unequivocal, there is a conflict with other advice he has received or the interests of public safety so require.
Rule 19 of the Mental Health Review Tribunals Rules provides that a Tribunal shall consider a reference made by the Home Secretary in whatever informal manner they think appropriate, that they may interview the patient and that they shall interview him if he so requests. In practice, a restricted patient may, like any other detained patient, be legally represented or accompanied by members of his family, or both. The dossier of papers supplied to the Tribunal by the Home Office is not generally disclosed to the patient himself and only partially disclosed to the legal representative, if any. In particular, the home circumstances report is never sent to the legal representative and the up-to-date medical report only if the responsible medical officer agrees.
Advice from Mental Health Review Tribunals about restricted patients is regarded as confidential to the Home Secretary. Patients and the representatives are simply told that the Minister’s decision has been taken in the light of Tribunal advice.
15. According to the evidence submitted by the Government, there are four ways by which the need for continued detention of a restricted patient may come to be reviewed by the Home Office:
- there may be a recommendation from the medical officer responsible for the patient that the patient should be discharged;
- the patient may ask for his case to be referred to a Mental Health Review Tribunal (see paragraph 13 above);
- the patient may write about his case to a Member of Parliament who brings it to the attention of the Secretary of State;
- the patient himself may write to the Secretary of State asking that he be discharged.
16. The person responsible for initially taking a recalled patient "into custody" will usually be a police officer, but may also be a social worker, a probation officer, a nursing officer or "any person authorised in writing by the managers of the hospital" (see sections 40 par. 1 and 66 par. 3 (b) of the 1959 Act).
At the end of 1980 ministerial circulars issued to the relevant authorities, including the police, the probation service and the special hospitals, announced that "in order to meet criticisms made by the European Commission of Human Rights", a new two-stage procedure for informing recalled patients of the reasons for their re-detention was to be introduced. At the first stage of this procedure, the person taking the patient into custody should inform the patient in simple terms that he is being recalled to hospital on the authority of the Home Secretary pursuant to the provisions of the 1959 Act and that a further explanation will be given later. A detailed account of the reasons for the recall must then be provided to the patient by the medical staff at the hospital where he is to be detained; this is to be done as soon as possible after the patient’s admission to hospital and in any event within 72 hours of admission. The responsible medical officer is also required to ensure that the officer who supervised the patient during release and a responsible member of the patient’s family (or his legal adviser) are informed of the reasons.
17. Any person who is detained may make an ex parte, that is to say, a unilateral, application for a writ of habeas corpus to a Divisional Court of the Queen’s Bench Division or, if no such Court is sitting at that time, to a single judge (of the High Court) in court or, if there is none, to such a judge wherever he may be found. Habeas corpus is a common law remedy, developed both by statute and by the courts themselves, by which a person may challenge the legality of his detention. Applications are given priority over other business. The case is considered on the basis of affidavit evidence, as to which cross-examination does not take place in practice. The normal procedure is for applications to be made by counsel; only in exceptional circumstances would a court hear an applicant in person. The judge or the Divisional Court may, where the illegality is clear, order that the writ issue forthwith but more commonly will arrange for the person holding the detainee to be notified of the application and be given an opportunity of appearing before the full court to justify the detention. If at the hearing the Divisional Court is not satisfied that the detention is lawful, it will issue the writ which will have the effect of procuring the release of the person detained.
There is in this respect no limitation on access to the courts by patients detained under the 1959 Act. According to the Government, such patients may apply at any time for a writ of habeas corpus save that where an application fails a fresh application made on the same grounds but without fresh evidence to support it will not succeed.
18. The scope of review open to the courts in habeas corpus proceedings can be extensive. Under sections 3 and 4 of the Habeas Corpus Act 1816, the courts may inquire into the truth of the facts stated in the return to a writ of habeas corpus where the applicant is confined "otherwise than for some criminal or supposed criminal matter and except persons imprisoned for debt or by process in any civil suit".
19. However, the operation in practice of the remedy of habeas corpus is by no means uniform and the case-law is not free from apparent contradiction. One factor partially explaining the apparently contradictory nature of the case-law is, as the Government pointed out, that the scope of review undertaken by the courts varies according to the context in which the application for a writ is brought. In particular, where the liberty of the subject has been restrained on account of an order made in purported exercise of a discretionary power vested by statute in the executive authorities, the scope of review will to a large extent be governed by the terms of the relevant statute.
In habeas corpus proceedings, in examining an administrative decision to detain, the court will always inquire whether the applicant has been lawfully detained in accordance with the requirements stated in the relevant legislation. Furthermore, even an order for detention that is technically good on its face can be upset, inter alia, if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose (see R. v. Governor of Brixton Prison, ex parte Sarno (1916) 2 King’s Bench 742 and R. v. Brixton Prison (Governor), ex parte Soblen (1962) 3 All England Law Reports 641), or if the decision to detain is supported by no sufficient evidence or is one which no reasonable person could have reached in the circumstances (see Shahid Iqbal (1978) 3 Weekly Law Reports 884 and Zamir v. Secretary of State (1980) 2 All England Law Reports 768). Subject to the foregoing, the court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority.
If the return to the writ on its face shows a valid authority for the detention, it will in effect be for the applicant to establish that the detention is illegal (see Re Wajid Hassan (1976) 2 All England Law Reports 123 and Zamir v. Secretary of State, loc. cit.).
20. In 1965 and 1966, the applicant received psychiatric treatment for delusions. He was diagnosed as having a paranoid psychosis.
On 22 October 1968, he appeared at the Sheffield Assizes and pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The facts before the court were that the applicant had struck a workmate in the mouth with a heavy spanner.
Following his conviction, the court remanded him in custody for medical reports. At the adjourned hearing on 7 November 1968, oral reports were given by two medical practitioners concerning the applicant’s mental health; the court made an order under section 60 of the 1959 Act for his admission to and detention in Broadmoor Hospital, a special secure mental hospital for the criminally insane. The court also made a restriction order against the applicant for an indefinite period in accordance with section 65.
21. During X’s detention in Broadmoor Hospital, his case was frequently reviewed by the hospital authorities. In January 1970, his case was referred, at his own request, to a Mental Health Review Tribunal. In the light of the Tribunal’s advice, the Home Secretary decided not to authorise the applicant’s discharge or transfer to another hospital.
However, in January 1971, the responsible medical officer was able to report an improvement in X’s condition to the extent that he recommended that X should be conditionally discharged. On 19 May 1971, the Home Secretary ordered the applicant’s conditional discharge under section 66 par. 2 of the 1959 Act. The conditions to be observed were that the applicant should reside at the matrimonial home, be under the supervision of a probation officer and attend a psychiatric out-patients’ clinic as directed by the responsible medical officer at Broadmoor Hospital.
22. Throughout the time of his conditional discharge the applicant lived with his wife. He committed no further criminal offence. After an initial period of unemployment, he eventually settled into stable employment. He was seen at regular intervals by the nominated probation officer and a consultant psychiatrist at Sheffield. Reports on his mental condition indicated that he continued to suffer from mental disorder, but until April 1974 the probation officer, the responsible medical officer at Broadmoor to whom the probation officer was reporting and the consultant psychiatrist in Sheffield saw no reason why he should not stay at liberty.
23. On Friday, 5 April 1974, however, the applicant’s wife visited the probation officer and told him that the applicant’s condition had not, for a long time, been as she had described in her previous progress reports. On the contrary, she said, he remained deluded and threatening, using obscene language, accusing her of loose morals, and drinking quite heavily. She told the probation officer that she had reached the end of her endurance and intended to leave her husband the following day, but was afraid to stay in the house with him that night.
The probation officer alerted the responsible medical officer at Broadmoor. The medical officer was aware of X’s previous history, including his record of impulsive and dangerous conduct under stress; he also had copies of the psychiatric reports prepared on X during the latter’s period of conditional release. In consequence, the doctor became alarmed at the possibility of a recurrence of violent behaviour by X, especially if X came to know of his wife’s intention to leave him. The doctor did not judge it necessary to seek to have the wife’s complaints verified since it was in his view sufficient that the complaints had been made and that the probation officer found them credible. The doctor therefore referred the matter to the Home Secretary who, acting on his advice, ordered the applicant’s immediate recall to Broadmoor Hospital in pursuance of section 66 par. 3 of the 1959 Act.
24. On the afternoon of the same day, shortly after his return home from work, X was taken into custody by the police. There is no evidence as to what exactly the police said to the applicant on detaining him. X maintained that he received no explanation other than the warrant order itself. The Government referred to the usual procedure then applied in cases of this kind whereby the person concerned was simply informed that he was being recalled to Broadmoor by the Home Secretary. X was detained overnight and escorted back to Broadmoor Hospital on the following day.
25. According to the applicant, on his arrival at the hospital he was not given any explanation for his recall, although he inferred from interviews with the responsible medical officer some time after his readmission that it had something to do with complaints from his wife.
The Government maintained that immediately on X’s return to Broadmoor the responsible medical officer sought to explain to him the reasons for his recall, and in particular the fears and anxieties expressed by his wife. However, since X was at this time extremely resentful, disturbed and suffering from delusions, it is possible, so the Government submitted, that he did not fully understand or appreciate the explanations afforded to him.
26. On the Saturday morning before being escorted back to Broadmoor, X had instructed solicitors to apply for a writ of habeas corpus on his behalf.
The following Monday, the solicitors spoke on the telephone to the responsible medical officer who, in confidence, mentioned in general terms the wife’s visit to the probation officer, her anxiety regarding aspects of the applicant’s behaviour and his, the doctor’s, action in advising recall because of concern for the wife’s safety.
The application - which was made ex parte - came before the Divisional Court on 24 May. With the agreement of X’s counsel, the application was adjourned in order to enable further information to be sought; the Court wished in particular to know more about the reasons that had led to the Home Secretary’s action. One of the judges remarked: "It really needs more information, ... and very often the patient himself is unable to give it. One has to look to the sources which have called for his recall."
27. The same day, the applicant’s solicitors wrote to the Home Office requesting information as to the reasons for their client’s recall. By letter dated 31 May 1974, the Home Office replied:
"In April 1974 the supervising probation officer reported to the responsible consultant psychiatrist at Broadmoor that [X’s] condition was giving cause for concern. In the light of the advice subsequently received from the consultant the Home Office considered it necessary for the protection of the public and in [X’s] own interest that he would be recalled to hospital immediately for further observation and treatment."
The solicitors also approached the probation service in Sheffield, but the probation service declined to supply them with the information sought.
28. On 21 June 1974, the adjourned application for a writ of habeas corpus was heard in the Divisional Court of the Queen’s Bench Division. The Court had before it the Home Office letter of 31 May 1974, letters from three of the applicant’s former workmates stating that they found nothing unusual about his behaviour, and affidavits from the applicant himself, from his general practitioner and from the consultant psychiatrist in Sheffield. Exhibited to the two latter affidavits were medical reports supplied at the request of X’s solicitors and covering the period of conditional discharge.
In his report, dated 12 June 1974, the consultant psychiatrist wrote:
"For quite a time I felt that whilst one was sitting on a time-bomb I had no clear evidence that he was in fact likely to be harmful to somebody. Nevertheless I felt very apprehensive throughout the whole of his period ... In my opinion the man is a querulous suspicious person liable to paranoid ideation and inevitably presents a risk to the community ..."
He also confirmed views he had expressed in September 1971 in a letter to the Sheffield probation service. In this letter he spoke of the need to "steer [X] clear of depressed situations which could lead to murder or serious bodily harm to other people", and added:
"The greatest danger in handling him is to lose one’s judgement to such an extent that one minimises the degree to which he has shown evidence of a striking paranoid psychosis."
Counsel for the applicant, stating that his client had not the slightest idea why the probation officer had alerted the responsible medical officer at Broadmoor, explained:
"... although enquiries have been made, no information has been obtained on that point so that it is difficult for the applicant or his advisers to know whether there was sufficient justification for the course taken by the Home Secretary."
29. At the close of the hearing, the Divisional Court rejected the application. Although the record of the proceedings contained in the transcript is not entirely clear, it would appear that the Court, in reaching its conclusion, had regard to the discretion vested in the Home Secretary under section 66 par. 3 of the 1959 Act, the apprehension expressed by the consultant psychiatrist, and the fact that the probation officer saw possible signs of impending danger to other people. The concluding remarks of one of the judges on the Court were as follows:
"Unless the Broadmoor authorities, [the consultant psychiatrist] and the Home Secretary take this view, then people life [X] cannot be released from hospital except in the most exceptional circumstances. The only possible way this can operate is by letting people out on licence, with very careful supervision, and an immediate reaction in the event of any signs of new danger ..."
30. Following X’s readmission to Broadmoor, his responsible medical officer was of the opinion that he should be further detained for treatment and medical reports indicated that he remained in a psychotic state.
In July 1975, X asked the Home Secretary to refer his case to a Mental Health Review Tribunal in accordance with section 66 par. 8 of the 1959 Act (see paragraph 13 above); X claimed to have made an earlier request in February 1975, but there is no record of this, either in the Home Office or at Broadmoor. The hearing before the Mental Health Review Tribunal took place in October 1975. The Tribunal’s advice, which was not communicated to X or his solicitors, was to the effect that the patient continued to suffer from mental illness but could now be released provided he remained subject to certain conditions. In December 1975, the responsible medical officer having noted an improvement in the patient’s state, the Home Secretary agreed in principle to a conditional discharge if suitable arrangements could be made.
X left the hospital in February 1976 on leave. In July of that year, the Home Secretary consented to his conditional discharge. X died on 17 January 1979.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-80725
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GLADCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1961 and lives in Gdynia.
5. On 28 October 1996 the applicant was arrested on suspicion of having committed armed robbery while acting in an organised criminal gang.
6. On 30 October 1996 he was brought before the Gdańsk Regional Prosecutor and charged with armed robbery, kidnapping and extortion. On the same date the Gdańsk District Court remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question while acting in an organised criminal gang. It held that there was a risk that the applicant might obstruct the proceedings or abscond. It further relied on the severity of the anticipated penalty.
7. Later, several other persons were detained and charged in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office.
8. On 16 January 1997 the Gdańsk Regional Court prolonged his detention until 28 April 1997.
9. On 16 April 1997 the Gdańsk Court of Appeal ordered that the applicant be kept in custody until 29 July 1997. It relied on the reasonable suspicion that the applicant had committed the offences in question and the gravity of the charges. It also had regard to the number of suspects and the need to obtain further evidence.
10. On 16 July 1997 the Court of Appeal extended the applicant's detention until 27 October 1997. It found that there was a reasonable risk that the applicant might go into hiding or obstruct the proceedings. It also relied on the severity of the anticipated penalty. Lastly, it noted that further prolongation of the investigation was not attributable to the prosecuting authorities, but resulted from the fact that further suspects had been identified and arrested. Furthermore, the prolongation was due to a delay in the preparation of some expert reports and the need to request legal assistance from the German authorities.
11. On 17 September 1997 the Supreme Court prolonged the applicant's detention until 31 December 1997. It found that there was a reasonable risk that the suspects might intimidate witnesses, given the nature of the charges against them. It further observed that the investigation could not be terminated on account of the prolonged preparation of an expert report and the need to hear a witness, W.B., who was serving his prison sentence in Germany.
12. On 28 November 1997 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with, inter alia, armed robbery, kidnapping, extortion and inflicting bodily harm which had been committed while being a member of an armed organised criminal gang. The bill of indictment specified that the applicant was a recidivist offender. There were 16 defendants in the case, all charged with numerous counts of armed robbery and extortion.
13. On 7 January 1998 the Gdańsk Regional Court ordered that the applicant be held in custody until 21 September 1998. In addition to the grounds previously invoked, it relied on the complexity of the case and the number of defendants.
14. On 24 February 1998 the trial court held the first hearing. It subsequently held some 56 hearings in the case.
15. On 17 September 1998 the Regional Court extended his detention on remand until 21 October 1998.
16. On 6 October 1998 the Supreme Court prolonged the applicant's pre-trial detention until 30 January 1999. It observed that the fact that the trial had not been terminated could not be attributed to the authorities, given the volume of evidence and the fact that some hearings had to be cancelled as the defendants' counsel or witnesses had not appeared. It further considered that the applicant had been charged with the commission of the crimes for which he was liable to a sentence of imprisonment exceeding 8
17. On 19 January 1999 the Supreme Court ordered that the applicant and his 9 co-defendants be kept in custody until 30 June 1999. It relied on the fact that witnesses had informed the trial court about having been threatened by the defendants. It also had regard to the severity of the anticipated penalty and the presumption established by Article 258 § 2 of the Code of Criminal Procedure. Furthermore, the Supreme Court considered that the prolongation of the detention beyond the statutory time-limit of two years was justified by the complexity of the case and the volume of evidence to be heard. In that respect, it also observed that in December 1998 the trial court had been prevented from hearing evidence on account of the absence of two defence counsel.
18. On 2 June 1999 the Supreme Court prolonged the applicant's detention until 31 December 1999. It noted that the trial was being efficiently conducted and that it had not been terminated for reasons which were attributable to the defendants and their counsel. It noted in particular that the defendants had attempted to intimidate witnesses and protract the trial. Further, it had regard to the nature of the charges and the severity of the likely penalty.
19. On 14 December 1999 the Regional Court convicted the applicant of armed robbery, kidnapping, extortion and inflicting bodily harm and sentenced him to 9 years' imprisonment and a fine.
20. Further decisions on the prolongation of the applicant's detention were given by the Regional Court on 21 December 1999 (ordering his continued detention until 30 June 2000) and 21 June 2000 (extending that period until 30 November 2000).
21. On 11 August 2000 the applicant was served with a copy of the Regional Court's judgment. He subsequently appealed against that judgment.
22. On 22 November 2000 the Gdańsk Court of Appeal prolonged the applicant's detention until 31 January 2001. On 17 January 2001 his detention was extended until 31 March 2001.
23. On 6 March 2001 the Court of Appeal held a hearing.
24. On 7 March 2001 the Court of Appeal quashed the first-instance judgment in respect of the applicant and remitted the case for retrial.
25. On 14 March 2001 the Court of Appeal ordered that the applicant and his 11 co-defendants be held in custody until 30 June 2001. Having regard to Article 258 § 2 of the Code of Criminal Procedure, it observed that the applicant might attempt to obstruct the proceedings given the likelihood of a severe penalty being imposed on him. It also relied on the nature of the charges.
26. On 19 June 2001 the Gdańsk Regional Court held the first retrial hearing. It subsequently held some 20 hearings.
27. On 19 June 2001 the Court of Appeal prolonged his detention until 30 September 2001. It noted that continuation of that measure was necessary in order to secure the proper conduct of the proceedings, given the severity of the anticipated penalty.
28. On 28 September 2001 the Gdańsk Regional Court ordered that the applicant and 11 of his co-defendants be kept in custody until 30 December 2001. It found that the applicant's continued detention was necessary in order to prevent the applicant from interfering with witnesses. On 10 October 2001 the Court of Appeal dismissed the applicant's appeal against that prolongation. Referring to Article 5 § 3 of the Convention, it observed that the applicant' crimes, and thus his continued detention was justified on public interest grounds.
29. On 28 December 2001 the Regional Court prolonged the applicant's detention until 30 March 2002. It held that following the Court of Appeal's instructions most of the witnesses who had given evidence at the original trial had to be heard again. In that case there was a reasonable risk that the defendants might interfere with witnesses. In addition, the court held that given the gravity of the charges and the likelihood that severe penalties would be imposed on them, the defendants might obstruct the proceedings by going into hiding. On 23 January 2002 the Gdańsk Court of Appeal upheld that decision. It considered, inter alia, that the Regional Court had attempted to examine the case within a reasonable time, but there had been significant delays in the trial which were attributable to the defendants or their counsel. In this respect, it pointed out to the obstructive conduct of all the defendants on 18 December 2001 which had prevented the Regional Court from holding a hearing on that day. On the other hand, the Court of Appeal instructed the Regional Court to assess the length of detention of each defendant separately. It pointed out that the further prolongation of the detention of those defendants who were not simultaneously serving prison sentences could not be accepted in the long term.
30. Subsequently, the Regional Court prolonged the applicant's detention on 15 March 2002 (until 30 June 2002) and 21 June 2002 (until 30 September 2002). It invoked the same grounds as in its previous decisions. The applicant appealed against the latter decision.
31. On 31 July 2002 the Court of Appeal altered the Regional Court's decision and ordered that the applicant be released. It underlined that the applicant's detention on remand had been exceptionally long and thus lost its provisional nature. Having regard to the current progress of the trial, the court observed that it was not possible to predict when the proceedings would be terminated. Furthermore, it noted that 7 out of 10 co-defendants were serving long-term prison sentences.
32. Prior to his release, the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive.
33. It appears that the criminal proceedings against the applicant are still pending.
34. From 27 March 2000 to 15 November 2002 the applicant served a prison sentence imposed on him in a separate set of proceedings.
35. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-45, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 2-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-60571
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BARATTELLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. On 4 May 1988 the Genoa Public Prosecutor's Office informed the applicant that criminal proceedings concerning his public duties (the applicant was a civil servant in the Ministry of Public Works) had been instituted against him. These proceedings were subsequently transferred to the Milan Public Prosecutor's Office, and on 7 September 1988 the Milan investigating judge informed the applicant that a charge of corruption was pending against him.
9. On 26 May 1989 the applicant was heard by the Milan investigating judge.
10. On 31 May 1991 the applicant and forty-four other persons were committed for trial before the Milan District Court. The first hearing, initially scheduled for 27 January 1993, took place on 12 January 1994.
11. In a judgement of 31 March 1994, the District Court, following the plea bargain procedure (“applicazione della pena su richiesta delle parti”) sentenced the applicant to one year and four months' imprisonment. This decision was filed with the registry only on 19 March 1997. It became final on 6 July 1997.
12. In the meantime, by an order of 31 July 1995, the Ministry of Public Works dismissed the applicant from his post as a consequence of his criminal conviction.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88315
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HURST v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Daniel Hurst, is a British national who was born in 1936 and lives in Nottingham. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 16 February 1987. On 10 April 2002, the applicant made a claim for widows’ benefits. On 10 June 2002 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-71360
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SUSS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Mr Werner Süß, is a German national who was born in 1940 and lives in Berlin.
The applicant’s daughter F. was born on 29 November 1984. In August 1989 the applicant and G.S., his then wife, separated. Since then F. has been living with her mother, who was awarded custody of her. On 6 December 1992 the applicant had his last contact with F.
On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court suspended the applicant’s access to F. This judgment was upheld by the Berlin Court of Appeal on 4 March 1997. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged against the latter judgment.
In his first application (no. 40324/98) to this Court, the applicant complained, in particular, that the said court decisions suspending his access to F. amounted to a breach of his right to respect for his family life. He further claimed that the court proceedings concerned had not been fair. On 20 September 2001, the Court declared admissible these complaints.
The applicant’s second application (no. 63309/00) lodged with the Court concerns the refusal of the German courts to order the disclosure of F.’s whereabouts to him.
On 1 July 1998, when the amended Law on Family Matters entered into force, the applicant lodged a fresh application to be granted access to his daughter F. with the Zossen District Court. He relied on sections 1684 and 1696 of the Civil Code (see ‘Relevant domestic law’ below). Subsequently, he submitted further observations dated 31 July 1998, 14, 23, 26, 27 and 28 August 1998, 3, 6, 8, 14, 22 and 23 September 1998, 20, 21, 23, 24 and 26 October 1998 and 4, 5, 6 and 8 November 1998. In these submissions the applicant brought several motions for evidence to be taken and urged the court to speed up the proceedings.
On 10 November 1998 the Zossen District Court heard the applicant, G.S. and a representative of the Youth Office. It decided that contacts between the applicant and his daughter F. should cautiously be resumed by an exchange of letters between them via the Youth Office. Furthermore, a curator ad litem (Verfahrenspfleger) should be appointed in order to assist in the resumption of contacts and to represent F.’s interests in the proceedings. The initiation of contacts should last for nine months, during which the proceedings were suspended.
On 19 November 1998 the Zossen District Court appointed W. as F.’s curator ad litem.
On 7 September 1999 the Zossen District Court, on the applicant’s motions, resumed the proceedings. It heard the applicant, G.S., F. and the curator ad litem W.
On 30 September 1999 the Zossen District Court, having regard to the submissions of the parties and F. at the court hearings and to the reports of the Youth Office and the curator ad litem, dismissed the applicant’s request to be granted access to F. It found that the applicant had failed to demonstrate that there were new circumstances due to which the suspension of his access to F. as ordered by the Berlin Court of Appeal in its final judgment on 4 March 1997 should be ended. The court found that in the present proceedings, just as in the proceedings leading to the said judgment, the applicant’s daughter had unequivocally expressed her wish not to have contacts with her father.
The District Court noted that there had been an exchange of letters between the applicant and F. via the Youth Office. The curator ad litem had organised one meeting between them in May 1999, which both F. and the applicant had appreciated. Nevertheless, F. had subsequently stated that she did not wish to have further contacts with her father.
The District Court found that, contrary to the applicant’s view, F. could not be considered as suffering from parental alienation syndrome. She was not unable to express her own view, and was not merely repeating her mother’s views. This was proved by the fact that she had agreed to have contacts with her father in writing and once in person. In her hearing in court, she had not denied having appreciated the meeting with her father. However, she had disapproved her father’s persistent struggle to enforce his right of access to her against her will.
The District Court found that in principle, contacts between a father and his child are in the child’s best interests. However, the firmly expressed will of F., who had almost attained the age of fifteen, not to have further contacts with her father had to be taken seriously. Ordering contacts against her will was not in her best interests. According to the submissions of the curator ad litem, F. was torn apart by her parents’ conflicts. Having to maintain court-ordered contacts with her father would affect her because of her loyalty to her mother, whose deep-rooted negative opinion of her father was known to F. Furthermore, due to the applicant’s readiness to enforce a right of access granted to him by coercive measures, contacts between him and F. could not be expected to take place without problems.
The District Court found that it had not been necessary to order a further expert report. Even if an expert found that F. suffered from parental alienation syndrome, ordering access would be contrary to her well-being, given the conflict of loyalties in which she found herself.
On 4 November 1999 the applicant lodged an appeal against the District Court’s decision, which he reasoned on 3 December 1999. A hearing of the parties scheduled for 4 April 2000 had to be adjourned due to G.S.’s illness.
On 19 May 2000 the Brandenburg Court of Appeal heard the applicant, G.S., F. and the curator ad litem.
On 6 June 2000 the Brandenburg Court of Appeal ordered a psychological expert report on the question of access. Expert H. was notably to address the question whether F.’s persistent refusal to have contacts with her father had to be considered as an expression of her own free will. The applicant subsequently appealed against the court’s decision to order a further expert report and challenged H. for bias. On 19 July 2000 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the said decision. On 6 September 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against these two decisions.
On 8 September 2000 the applicant challenged the judges dealing with his case at the Court of Appeal for bias, notably arguing that they prolonged the proceedings by ordering a superfluous expert report. He submitted further mostly handwritten observations dated 14, 18 and 20 September 2000 and 7, 12 and 18 October 2000 reasoning his motion. On 25 October 2000 the Brandenburg Court of Appeal dismissed the applicant’s motion for bias. On 10 January 2001 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the Court of Appeal’s decision in this respect.
On 26 February 2001 the Brandenburg Court of Appeal dismissed the applicant’s motion objecting to the expert H. on grounds of bias and his motion to rectify the minutes of the hearing on 19 May 2000. On 11 April 2001 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the said decision of the Court of Appeal.
On 22 May 2001 the Brandenburg Court of Appeal granted the applicant legal aid.
On 22 June 2001 expert H. received the court’s case-files. She heard F. on 29 August and 5 October 2001. On 25 October 2001 the Brandenburg Court of Appeal dismissed the applicant’s renewed motion challenging H. for bias. The applicant refused to keep appointments with the expert on 15 November and 13 December 2001. By a letter dated 10 January 2002 the Court of Appeal again invited the applicant to fix an appointment with the expert, but the applicant failed to do so.
On 11 March 2002 expert H. submitted her report, in which she proposed not to grant the applicant access to F. against F.’s firmly expressed will.
On 17 Mai 2002 the Brandenburg Court of Appeal, having heard the applicant, G.S., F., the curator ad litem and the psychological expert in person, dismissed the applicant’s appeal. It further relied on the reports submitted by a representative of the Youth Office. The court found that the applicant could not be granted access to F., because contacts with him, including those in the presence of a third party, were against F.’s will and therefore contrary to her best interests. Ordering contacts with a parent against the firmly expressed will of a child who has almost attained the age of majority would violate the child’s right to privacy (Persönlichkeitsrecht). F. was then seventeen and a half years old. She had expressed her wish not to meet the applicant persistently and in an unequivocal manner already at the hearing by the District Court and when questioned by the curator ad litem, the court-appointed expert and the representative of the Youth Office. In her hearing in court, F. had again stated that she wanted a rest from the applicant and did not want further court proceedings.
The decision was served on the applicant on 11 June 2002.
On 25 June 2002 the applicant lodged a complaint with the Federal Constitutional Court, which he further reasoned in his submissions dated 2 July and 5 July 2002.
Invoking the relevant articles of the German Basic Law as well as Articles 6 and 8 of the Convention, the applicant claimed that the decisions of the family courts ordering that his access to F. remain suspended violated his right to respect for his family life. He further complained that he had not had a fair trial because the curator ad litem had been prohibited by the president of the Court of Appeal to comment on the parental alienation syndrome from which his daughter suffered. According to the applicant, it had been superfluous to order a further report by a psychological expert. This had caused the length of the proceedings in the Court of Appeal to become excessive.
On 16 July 2002 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint, as it was inadmissible.
On 29 November 2002 F. attained the age of majority.
At the relevant time, i.e. after the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the applicable provision of the Civil Code concerning access to a child born in wedlock was worded as follows:
Section 1684
“1. The 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.
2. 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. ...
3. 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. They may order the parties to fulfil their obligations towards the child.
4. The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child’s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child’s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party.”
Pursuant to section 1696 § 1 of the Civil Code, as in force since 1 July 1998, the courts sitting in family matters must modify their decisions if this is necessary for cogent reasons which have a lasting effect on the child’s well-being.


ITEMID: 001-93109
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YEROSHKINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1954 and lives in Odessa, Ukraine.
5. At the material time the applicant worked at the Odessa Naval College (“the ONC”), a State educational institution. According to the applicant, in July 1990 her family was provided by the ONC with an apartment. However, she was not provided with any documents certifying her title to this apartment.
6. In June 1997 the ONC instituted proceedings in the Zhovtnevy District Court of Odessa against the applicant, seeking eviction of her family. In this respect the ONC argued that the premises at issue were for administrative use only and that the applicant was occupying them without permission. The applicant lodged a counterclaim, seeking to acknowledge the habitable status of the disputed premises and her tenancy title thereto. She also sought to oblige the ONC to conclude a rent contract with her on the disputed premises.
7. On 9 September 1997 the court joined the local city administration to the applicant’s case as a third party.
8. From 25 September to 6 November 1997 and from 2 December 1997 to 15 January 1998 the proceedings were stayed due to the illness of the applicant.
9. On 16 April 1998 the court ordered a forensic examination of the premises at issue. The expert’s report was completed by 20 October 1998.
10. On 9 November 1998 the applicant lodged an additional claim, seeking compensation for non-pecuniary damage.
11. On 31 December 1998 the court found for the ONC and rejected the applicant’s counterclaims. Accordingly, it ordered eviction of the applicant’s family.
12. On 23 March 1999 the Odessa Regional Court (since June 2001 the Odessa Regional Court of Appeal) quashed this judgment on an appeal by the applicant, finding that the lower court had failed to identify the members of the applicant’s family and to join them to the proceedings as codefendants. Accordingly, it remitted the case for fresh consideration.
13. On 28 May 1999 the case was transferred for examination to the Leninsky District Court of Odessa.
14. From 9 June 1999 the court repeatedly requested the head of the military unit, the employer of the applicant’s husband, to provide documents necessary for the case. A reply was sent to the court only on 12 October 1999.
15. On 25 June 1999 the applicant’s husband and son were joined to the proceedings as co-defendants.
16. From 29 February to 26 April 2000 no hearing was held as the judge in charge was either away on business or ill.
17. On 26 April 2000 the court came to the same conclusions as the Zhovtnevy District Court of Odessa.
18. On 18 July 2000 the Odessa Regional Court quashed this judgment on the ground that the lower court had failed to address the statute of limitation issue in the case and the applicant’s claim for compensation. Accordingly, it remitted the case for fresh consideration.
19. Of the eleven hearings held between April 1999 and 18 July 2000 two were adjourned due to the applicant’s or her family members’ failure to appear before the court, and four due to the ONC representative’s failure to appear before the court. One of the hearings, on 20 December 1999, was adjourned as none of these persons attended.
20. In July-September 2000 the courts considered the applicant’s request to have her case examined on the merits by the panel of judges of the Odessa Regional Court of Appeal. This request was ultimately granted and the case transferred back to the Odessa Regional Court of Appeal which took it over on 20 September 2000.
21. Between 27 September and 21 November 2001 four hearings were adjourned due to the ONC representative’s failure to appear before the court or upon his requests. Four hearings held between 27 March and 13 May 2002 were adjourned due to the applicant’s failure to attend them. According to the applicant, she had not been duly summoned by the court and therefore those delays were not her fault.
22. On 29 May 2002 the Odessa Regional Court of Appeal found that the premises at issue were not habitable and were for administrative use only. It went on to say that these premises had been provided to the applicant on a temporary basis conditional upon her employment with the ONC and that the applicant was no longer working at the ONC. Accordingly, the court rejected the applicant’s claim and ordered the eviction of her family.
23. Of the twenty-four hearings held between July 2000 and 29 May 2002 two were adjourned due to the applicant’s and two due to the ONC representative’s failure to appear before the court, in addition to those mentioned before (see paragraph 21). Four hearings were cancelled because the judge in charge was either travelling on business or ill.
24. On 13 March 2003 the Supreme Court of Ukraine upheld the judgment.
25. Apparently, the judgment of 29 May 2002 has still not been enforced.
VIOLATED_ARTICLES: 6