ITEMID: 001-60781
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF E. AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;No separate issue under Art. 8;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicants, E., H., L. and T. were born in 1960, 1961, 1963 and 1965 respectively and live in Scotland. E., L. and T. are sisters and H. is their brother.
9. The applicants’ mother had six children by her husband. After the death of the applicants’ father in 1965, their mother cohabited with W.H. Two further children were born in that relationship.
10. The family, living in a local authority flat in Dumfries, were known to the social services of Dumfries and Galloway Regional Council (“the local authority”). The records provided by the Government show that they were principally concerned from 1970 onwards in relation to the mother’s severe financial difficulties. The mother suffered from bad health and it was noted in 1973 that when she had a broken arm she always kept one of the children off school (presumably to help in the home) and was likely to be summoned before the Education Sub-Committee. Problems with rent and electricity arrears were noted as recurring through 1975 and 1976, as well as continuing health difficulties suffered by the mother. An entry on August 1976 noted that the eight children were all happy though overcrowded and that there were no behavioural problems.
11. On 16 November 1976, it was recorded however that E., the first applicant, who had been causing concern as she had been staying out at night, was found semi-conscious at a nearby flat, having taken an overdose. It was noted that the mother was to take her to attend a psychiatric clinic. The medical notes recorded that E. complained that she disliked intensely her mother’s cohabitee W.H. who hit her, shouted and upset her so much that she ran away with intent to kill herself.
12. A social work report dated 25 November 1976 noted that the family consisted of six daughters and two sons living with their mother. W.H., the father of the two youngest children, was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially. The state of the home was said to fluctuate according to the mother’s health but was considered to be adequately furnished with a warm, friendly atmosphere. The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times. In spite of the fact that there was much juvenile delinquency in the area, this was noted as being the first time that any of her children had given cause for concern. The mother’s ambivalent attitude to school attendance was commented on.
13. In December 1976, E. left school and the social services gave assistance in finding employment.
14. On 7 January 1977, L., the third applicant, then aged 13, ran away from home, following an incident in which she claimed that W.H. had attempted to rape her. She was referred as an emergency by the police to the social services. The police interviewed all the family. It is not apparent that the family, in particular the children, were interviewed by social workers concerning the implications of L.’s disclosures. No steps were taken to refer them to the Reporter of the Children’s Hearing.
15. On 7 January 1977, W.H. was arrested by the police and charged with indecently assaulting E. and L.
16. On 8 January 1977, W.H. entered a guilty plea concerning charges involving offences of indecent behaviour against E. and L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and the case proceeded on the basis that W.H. had committed one act of indecency against E. between 20 October 1972 and 31 August 1976, and two acts of indecency against L. between 1 January 1975 and 7 January 1977. The Sheriff requested the social services to prepare social enquiry and psychiatric reports. W.H. was not detained pending sentence. According to the applicants, he returned to live at the applicants’ home.
17. On 11 January 1977, the applicants stated that the police submitted a report to the children’s social worker, S., expressing concern that the children should be protected from further abuse. The Government have found no trace of any such report in existence.
18. On 28 January 1977, W.H. appeared before the Sheriff for sentencing. The social enquiry report dated 18 January 1977 stated inter alia that the family lived in a four room local authority flat in an area where there was a high incidence of social problems. The home was adequately furnished and maintained to a reasonable standard. The mother was described as a caring woman who did not enjoy good health but who put her childrens’ interests first. The family was considered as appearing a happy well-adjusted group though they were well known to the social services as they had been given assistance from time to time. The children attended school regularly and appeared happily settled. W.H. was recorded as admitting the offence and as being more than ashamed of his conduct, though he could offer no explanation for these actions. It was noted that he did not appear to realise fully the serious nature of these charges. Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block. It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for many years. It was concluded that, in view of the serious nature of the offences, it would be necessary for firm control to be exercised over the accused for a period of time.
19. The psychiatric report found that W.H. did not show any psychiatric abnormality. His criminal record showed one prior minor offence of dishonesty.
20. W.H. was sentenced by the Sheriff to two years’ probation. The applicants state that this was with a condition that he cease to reside at the applicants’ address. The Government have found no record of that condition attaching to the probation order and stated that the probation file cannot now be found. They accepted however that it was the social services’ responsibility to supervise W.H.’s probation. According to the recollection of Mr M., who was the supervising officer for part of that period (after June 1977), he would have made it clear to W.H. that he was not permitted to live in the family home due to the nature of the offences. He recalled visiting W.H. at a separate address in Dumfries during this period and sending mail to that address. He believed that W.H. was living there and not at the applicants’ home. In the precognition annexed to the Government’s observations, Mr M., who was also probation officer for E. and acted as replacement for the family social worker, recalled however that he did have suspicions that W.H. might still be living at the family home and that on visiting the family home two or three times unexpectedly he found W.H. “just leaving”. He did not consider that there was sufficient evidence of W.H. breaching the conditions attached to his probation order to justify taking the matter further.
21. The social worker, Mr R., visited the home on 22 occasions between 24 January and the end of June 1977 and did not see W.H. However, his notes recorded in March 1977 a suspicion that the mother was still cohabiting with W.H. When Mr M. took over the case, he noted that W.H. was not living there (social work case notes entry of 6 August 1977) and that W.H. was not contributing financially to his children. In his later affidavit, he stated that this entry was based on information from the mother. Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school. In September 1977, it was noted that the school had expressed concerns about the welfare of T., the fourth applicant, which was attended to by a senior social worker. A school meeting concerning the children’s attendance was arranged but the mother and H., the second applicant, failed to attend. In November 1997, the social worker paid an unexpected visit to the home and found that W.H. was there. Both he and the mother denied that he was living there.
22. According to a social enquiry report of 1 June 1977 drawn up by Mr R. when E. was charged with criminal damage before the Sheriff Court, she had left home in about February 1977. No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co-habiting with her mother. E. was found guilty of malicious mischief on 15 June 1997 and sentenced to two years’ probation. Social work case notes also recorded that by March 1977 she had left home. According to her claims lodged in later proceedings, E. finally left home on her 17th birthday, in October 1977.
23. School attendance was still recorded as a problem in December 1977 for the remaining girls at home. H., the second applicant, had now left school officially. In her later statements, L. recalled that during 1977 she was on occasion taken into temporary local authority care in connection with problems of running away.
24. In January 1978, the mother was recorded as giving her various health problems as the reason for keeping L. and T. off school. It was noted that her speech was slurring, among other symptoms, but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor. In February 1978, she was keeping one or both girls off school to help her at home or to run messages.
25. In March 1978, it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt. The mother gave the impression of having given up. In June 1978, the mother was finally referred through her doctor for hospital tests, though she failed to attend the appointments set. In October 1978, it was noted that the house stank and that the carpet was matted. The mother informed the social worker that W.H., who lived in Derbyshire, had invited her to go and live with him there. She gave up that idea shortly afterwards.
26. In January 1978, L. was referred to a Children’s Hearing for failure to attend school. In the background report drawn up by Mr M. for the hearing, explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept L. from school to help in the home. There was no reference to the history of sexual abuse in the home. In April 1978, L. was living temporarily in a social work establishment known as the Closeburn Assessment Centre. On 22 April 1978, she ran away from the home and was returned. At a date unspecified, she went back to live at home.
27. H., aged 17, left the family home in or about 1978.
28. On or about 15 January 1979, L. left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services. After discussion with the mother, L. was taken into care by the social services until 20 February 1979.
29. On 16 March 1979, the school attended by L. called a multi-disciplinary meeting to discuss the problems of non-attendance of a number of the children of the family. Though a social worker was invited to attend, none was present.
30. On 28 March 1979, L. was transferred to a residential centre but left the following day to return home. At about the same time, the applicants’ mother changed address. L. lived with her there for about a week and then left to live with a friend. She took an overdose and was admitted to hospital. A letter dated 11 April 1979 from the psychiatric registrar to L.’s G.P. noted that “... she doesn’t get on well with her mother’s cohabitee. The relationship with Mum’s cohabitee seems a bit peculiar”.
31. After being discharged from hospital on 9 April 1979, L. went to live with a 50 year old man with whom she had a sexual relationship. On 17 April 1979, the police picked up L. who told them about the relationship. The mother agreed that L. was beyond her control and agreed that she be put in a place of safety. An order lasting one month was made to that effect. From 18 April 1979, she was made the subject of compulsory care measures by the local authority which brought her before the Children’s Hearing. In the background report drawn up by the social worker Mr E. for the hearing, details were given of the mother’s financial difficulties and ill-health and comment was made that, apart from truancy, the family had not been in any trouble. No reference was made to the past sexual abuse. The hearing extended the place of safety order. L. was sent to Closeburn Assessment Centre from 18 April to 18 June 1979. She appears to have remained there for most of the period until her 16th birthday on 28 July 1979, at which date she ceased to be subject to the legislation governing the compulsory education of children. Efforts were then made to find employment for her. Social work notes of 1 August 1979 concerning L. recorded that, when the social worker accompanied her to the mother’s home for a visit, a man described as L.’s stepfather was present in the living room.
32. Entries in the social work notes for the family during 1979 continued to emphasise financial difficulties. An entry in February 1979 referred to problems of school attendance of ten years’ standing and the mother’s frequent summoning before the school council.
33. On 7 April 1979, it was noted that the family had moved to a larger home, a self-contained house provided by the local authority.
34. Through 1979-1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorating to such an extent that she rarely got out of bed.
35. The applicants’ mother died in 1981. It appeared that she had been suffering, inter alia, from undiagnosed multiple sclerosis. The applicants’ elder sister (aged 22) took on the mothering role in the family home.
36. T. left home in November 1984, after she had become pregnant and had a child. By January 1988, she was living at an address with her 3 year old daughter and was in contact with the social services concerning her financial problems. In February 1988, she indicated to her social worker that she had been subject to sexual abuse in the past. In April 1988, she disclosed that this had involved her step-father W.H. as well as other men, one of whom had been convicted of rape. As at the time she was in regular contact with W.H., whom she considered had reformed, she was counselled concerning the risk to her own child.
37. Following counselling, E., L. and T. reported the history of abuse by W.H. to the police in or about November 1988. In her statement of 13 January 1989, L. stated that after W.H. had been arrested in 1977, various social workers used to come around and she and the others had had to tell them that W.H. was not living with them anymore. When they came to the house, W.H. used to hide and her mother used to keep the children out of their way if possible. She recalled wanting to tell a social worker what was happening but was so petrified of W.H. that she did not. W.H. continued to interfere with her and had sex with her a couple of times after the court case.
38. Charges were brought against W.H. of committing sexual offences against E., L. and T.
39. At his trial before the High Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two charges. The prosecution accepted his pleas. W.H. was duly convicted of serious acts of indecency against E. between 19 October 1967 and 18 October 1972 and of further such acts against her between 1 September 1976 and 18 October 1976; of serious acts of indecency against L. between 28 July 1968 and 31 December 1974; and of similar acts against T. between 28 August 1974 and 27 August 1978. Only part of the latter charge concerned the period after W.H.’s earlier conviction on 8 January 1977.
40. The trial was adjourned for sentencing reports to be obtained. On 20 July 1989, the High Court sentenced W.H. to a two year suspended sentence of imprisonment, having regard to the reports which indicated that he now lived in Yorkshire and that most of the offences predated his earlier conviction in 1977. However, it was only at this time that the applicants alleged that they became aware that W.H. had been subject to criminal proceedings in 1977 and that he had been placed on probation on the condition that he did not reside in their home.
41. On 18 June 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties, in particular, that W.H. had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care.
42. On 4 January 1996, following the decision of the House of Lords in X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and in the light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed.
43. In or about 1992 to 1993, the applicants applied for compensation to the Criminal Injuries Compensation Scheme in respect of the abuse suffered. In their applications, they alleged as follows:
(i) E. stated that from about 1967 she suffered 10 years of abuse from W.H. The first incident which she recalled was when she was 6 or 7 when he struck her, sending her flying into the wall. Soon after, he began coming into her room at night and doing things to her, requiring her to masturbate him. If she cried, he would punch her in the face. From the age of 12, he used to make the girls have a bath together and would touch them all over their bodies, inserting his finger into them. Often he would keep her off school and would abuse her sexually. He assaulted her often, coming up behind her to hit her on the back of the head. He also used to stand on her naked feet with his shoes on and twist, pinch her with his nails and punch her. This physical abuse happened on a daily basis. He would also get her and the others to strip to the waist and hit each other with dog chains. This conduct continued regularly until she left home on her 17th birthday (19 October 1977). She recalled going to the social services when she was aged 14 and telling them that W.H. was living with them when he was not supposed to. Nothing happened as a result. While the social services were coming to the house, she did not remember them talking to her. She recalled that this period was before she was 14 or 15, before 1974 or 1975. When she was 15, she started running away from home. On one occasion she took pills. When she was visited by the police in hospital, she told them that W.H. was interfering with her. She also told this to a psychiatrist whom she saw soon after. However, W.H. continued interfering with her. W.H. was only arrested after L. had run away from home in January 1977. E. had suffered serious problems since that time, having made several suicide attempts and having developed a severe drink problem. A psychiatric report of 24 April 1992 concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder.
(ii) H. stated that he suffered from physical abuse, assaults and threats of violence from W.H. from about 1967. From about the age of 6 or 7, W.H. used to punch him in the stomach and bash him against the wall. He also made him and the others strip to the waist and punch and hit each other with chains. These relentless assaults went on regularly until he left home during 1978. A psychiatric report of 9 June 1992 concluded that he had long term relationship problems, poor self confidence and long standing personality difficulties.
(iii) L. stated that she had suffered sexual and physical abuse from W.H. from 1969 until she left home in about 1979 and on occasion after that. W.H. had started interfering with her when she was about 5 or 6. The first thing she remembered was him bathing her with her sister E. and rubbing her private parts. Hardly a day went past when he did not do something of a sexual nature to her (e.g. touching her breasts or private parts) or batter her. When she was older, he made her touch him on his private parts and perform oral sex. He made her and the other children hit each other with chains and whips and would sometimes join in. She was often left with bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual intercourse with her several times. When she ran away in January 1977, she told the police and he was arrested. However, he returned home and started interfering with her again, having intercourse with her and punching or kicking her if she refused. She ran away again in Spring 1977 and was put into a home, first in Dumfries, then Annan and finally Closeburn, which she eventually left in 1979 when she was 16. At that point, she did not return home but went to stay with her sister and then embarked in a series of relationships. When she visited her mother on 1 January 1980, W.H. put his hands up her skirt but let her go when she threatened to tell her boyfriend. On another occasion in 1981, W.H. tried to fondle her but she got up and left. She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her. A psychiatric report of 24 April 1992 concluded that her symptoms, including nightmares and sleep disturbance, accorded with a diagnosis of severe post traumatic stress disorder.
(iv) T. stated that she had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though she did not remember anything specifically before the age of 9, she slept in the same bed as L. and remembered him coming naked into the bed with them. From an early age, he used to stand on her naked feet in his shoes and twirl round, nip her and punch her in the stomach. She had black eyes occasionally. When she was 9, she remembered him making her touch him and masturbate him. She had to do that to him two or three times a week when he came home from work. He then started keeping her off school and would lie down on the bed naked, making her take her clothes off and masturbate him. This occurred two or three times a week. When she was 10 or 11, he began to touch her breasts and rub his penis over her until he ejaculated. When she was 14, he forced her to have sexual intercourse with him. He did not repeat that but continued touching her and making her masturbate him or have oral sex. This continued until 1984 when she was able to leave home – she deliberately got pregnant by having sex with someone she knew, so that the local authority would provide her with accommodation away from home. In 1987, W.H. started coming to her house and would try to touch and grab her. She became very depressed and suicidal. She then told the Family Centre about the abuse. A psychiatric report of 24 April 1992 concluded that her symptoms, including low self-esteem, fear, mistrust and depression, accorded with a diagnosis of severe post traumatic stress disorder.
44. Though the applicable provisions did not permit claims for injuries from violence arising before 1 October 1979 where the victim and assailant were in the same household, the Criminal Injuries Compensation Board (“CICB”), in an apparent oversight, made an assessment awarding 25,000 pounds sterling (GBP) to E., L. and T. for general damages. They appealed against the failure to award damages for loss of earnings. As it was noted that in the proceedings for the fourth applicant T. that most of her injuries had arisen before 1979, the applicants E. and L. withdrew their appeals to prevent their awards being reconsidered altogether. In deciding T.’s appeal, the Board decided that as she had sustained some damage post-October 1979 it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects. H. did not receive any award. A letter dated 23 July 1992 from the CICB indicated that his application had been rejected in that his claim had not been made within three years of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case.
45. On 30 January 1996, the applicants requested the Commissioner for Local Administration in Scotland to undertake an investigation into their allegations of negligence and maladministration by the local authority. By letter dated 8 February 1996, the Ombudsman stated that he had no jurisdiction pursuant to section 24(6)c of the Local Government (Scotland) Act 1975, which precluded investigations where the complainants had a remedy by way of proceedings in a court of law, and that, even if he had jurisdiction, he would not have undertaken an investigation due to the lapse in time since the events occurred. By letter of 22 February 1996, he declined to reconsider his decision.
46. The Government submitted two reports by Ms Black, a social work consultant who has worked for more than 30 years in the field of child care, principally in Scotland.
47. In her first affidavit dated 26 March 2002, Ms Black stated that with the exception of cases of incest there was in the 1970s no real appreciation of the incidence of, and consequences for victims of, child sexual abuse within families. Circulars referred to non-accidental injury without specific reference to sexual abuse which was not recognised as a particular issue. It was only in the 1980s that literature began to arrive in the United Kingdom from the United States on the subject of child sex abuse and initially this was regarded as controversial. The first real recognition of the problem in the United Kingdom was a CIBA publication “Child Sexual Abuse in the Family” published in 1984. A Working Group on the topic was set up by the Social Work Services Group of the Scottish Office in which she was involved and which reported in 1985.
48. According to her experience, during the 1970s and before, where a case of incest or sexual abuse had been identified, the focus would be on ensuring that the perpetrator was punished. Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter. There was no real appreciation of the extent to which abusers might continue to abuse their victims over many years or of the skills of abusers in avoiding detection. Social workers were not given any specific training about child sex abuse. There was also the practice at the time of local authorities keeping their probation and child care functions separate, with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments.
49. In her view, after W.H. had been convicted and sentenced to probation in January 1977, it would have been generally assumed that any continuing problem would have been resolved, particularly if a condition in his probation was that he was not allowed to live in the family home. No work would have been envisaged with the victims unless they were showing obvious distress or problems. A mere suspicion that the W.H. was in breach of the probation order, and his presence found in the house during the day, would not have been sufficient proof of breach. He was the father of two of the mother’s youngest children, contact with the family was not prohibited and his presence in the house would have even been seen as positive. Even if they had considered the possible breach of probation further, they would not have gone on to consider possible harm to the children. It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on W.H.. As was the practice, social services provided support for the mother who had considerable problems in running the home, and would have had a tendency not to investigate the causes of any running away or of truancy, particularly where the child was close to school leaving age. Nor would it have been expected at the time for the social workers to make a point of talking individually to the children, unless for the purpose of a specific report.
50. In her additional comments of 20 May 2002, added in the light of the examination of further documents, Ms Black noted that at the meeting convened by the school in March 1979 concerning L. the social work department had not sent a participant though invited to do so. The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that L. and the others in the family faced were not discussed by the wider group of professionals who knew the family. By this time, the use of case conferences was well established in social work practice.
51. She also noted that following E.’s overdose of pills in November 1976, the social services did not appear to react to E.’s dislike of W.H. and her allegations of an earlier sexual assault and his shouting and hitting. Nor was there any social work follow-up when L. ran away in January 1977, beyond a visit of the emergency social worker, or any discussion with E. and L. after W.H. had been sentenced. Even if social workers at the time were not aware of the incidence of sexual abuse, the incidents with the two girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home, in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse.
52. Further, in the light of Mr R’s report to the court which commented on the need for firm control of W.H. and the mother’s refusal to accept that he had committed the offences, this made the assurances given by W.H. and the mother that W.H. was not living in the home much less safe to rely on. Mr R. did not appear to have issued any warning to them about the consequences of breaching the probation order. When the report was made on E. in June 1977 there was no reference to the sexual abuse or home difficulties. Also the report to the Children’s Hearing on L. in January 1978 failed to give a full picture of her difficulties. Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and W.H.’s adherence to the probation conditions. After the report on E. in June, it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family. The lack of detail in the reports on L. deprived the Children’s Hearing of vital information which could have led them to place L. on supervision and afforded more opportunity for her to speak about the home situation.
53. Though by January 1977 E. was too old to be referred to the reporter of the Children’s Hearing, grounds existed for referring L. at that time. Given the abuse, her level of truancy, the poor financial and material circumstances in the family and the offence of W.H., coupled with allegations by E. as to shouting and hitting in the family home, she considered that a referral of L. ought to have been made. This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems. Though L. might not have been removed in the first instances, a supervision requirement would have allowed closer contact and more individual work. The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care.
54. She concluded that the failure to share significant issues with the Children’s Hearing about L., the failure to work collaboratively with the school, the lack of attention to the assessed need for firm control of the situation after W.H. was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against W.H., all contributed to a failure to help get the girls the support they were likely to need after the conviction of W.H. and disclosed a failure in the approach taken to the family by the social work department.
55. The applicants provided three reports dated 20 March, 13 May and 10 June 2002 by Mr Richard Jack, a consultant in social work with experience in social work practice over 28 years.
56. He stated that from 1975, when circular SW1/75 was issued, a mult-disciplinary approach by professionals was promoted in respect of neglect and child protection, though sexual abuse was not explicitly referred to. While public and professional acknowledgement of a significant child abuse problem did not emerge until the mid-1970’s, in this case E. and L. had made disclosures which were believed and not in doubt. Literature as to the nature of the problem was available to practitioners, in particular with Kempe and Kempe’s work published in 1978, inter alia, identifying clear indicators as to the behaviour exhibited by abused children.
57. Despite long-term problems with the family and notes of truanting dating back to 1973, there was minimal reference to dialogue between the social services and the education authority. There was no reference in the social work records to the disclosures made by E. to medical personnel or to a visit to her in hospital by an emergency social worker, disclosing a significant breakdown in communication. The family social worker Mr E. appears to have had no clear knowledge as to the situation, while Mr M., who later supervised probation of W.H., was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue.
58. Once disclosures had been made by E. and L. in 1977, it would have been reasonable, given the ages of the children, to discuss W.H. with them outwith the presence of the mother. A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to the Children’s Hearing. In fact there was nothing to suggest that the social services explored W.H.’s impact on the children in the family at all.
59. The social service records noted clear suspicions that W.H. continued to live in the household. Though it was stated in the context of the probation order that firm control was needed, no steps were taken such as further enquiries from neighbours or the local police as to W.H.’s actual place of residence. Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter.
60. When L.’s truancy was referred to the Children’s Hearing in 1978, there was no reference to the background of her running away in January 1977 or to the history of neglect and turbulent dynamics in the family. It was negligent of the social services not to provide the panel with full information. Nor when there was a case study meeting at the school in March 1979 did any social worker attend. There was never any multi-disciplinary case conference which reviewed in a full, objective and accurate manner the history and circumstances of the family.
61. Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure (Scotland) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation.
62. The care and protection of children in Scotland was governed for most of the relevant period by the Social Work (Scotland) Act 1968 (the “1968 Act”).
63. There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter.
64. The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment.
65. After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary.
66. Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or the infliction of unnecessary suffering.
67. Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator.
68. Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff.
69. Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent).
70. As set out in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort (delict) of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship of proximity to the defendant; and
– that it is fair, just and reasonable to impose liability on the defendant.
The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).
71. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.
72. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties.
73. More recently, in the case of W. and Others v. Essex County Council ([1998] 3 AER 111) in a case concerning the claims of a family, parents and children, that they had suffered abuse and damage due to the foster placement in their home by the local authority of a 15 year old boy who was a suspected sexual abuser, the Court of Appeal held that a duty of care lay towards the children of the family, while the House of Lords on 16 March 2000 ([2000] 2 WLR 601) held that the parents could also arguably claim that they were owed a duty of care. The House of Lords had also given judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.
74. The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million GBP are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family.
75. The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed. Damages may be awarded in such proceedings.
76. Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so.
77. There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c).
VIOLATED_ARTICLES: 13
3


ITEMID: 001-58068
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF CANTONI v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 7
JUDGES: John Freeland
TEXT: 7. Mr Michel Cantoni, a French national who was born in 1947, is the manager of a supermarket owned by the Euromarché chain at Sens (Yonne).
8. In 1988 criminal proceedings were brought, at the instigation of the Yonne Pharmacists’ Association and several individual pharmacists, against the applicant and other managers of supermarkets in the region for unlawfully selling pharmaceutical products. He had sold in his shop aqueous eosin at 1% strength, 70% strength modified alcohol, 10-volume hydrogen peroxide, vitamin C (tablets of 500mg and sachets of powder of 1000mg), inhalations made out of plant essences, pocket inhalers, antiseptic sprays and mineral supplements.
In their defence the applicant and his fellow accused maintained that the products in question were not medicinal products within the meaning of Article L. 511 of the Public Health Code (see paragraph 18 below) and were accordingly not covered by the pharmacists’ monopoly.
9. On 30 September 1988 the Sens Criminal Court found the applicant guilty as charged, fined him 10,000 francs and ordered him to pay damages of 1 franc to each of the civil parties. After considering the products in question individually, it took the view that they were medicinal products, in some cases on account of their function and in others on account of their presentation (see paragraph 19 below).
10. On 18 May 1989 the Paris Court of Appeal upheld the first-instance judgment, on the following grounds:
"It is necessary to examine each of the products marketed listed above in order to determine whether or not they are medicinal products ...:
(1) BIO-OLIGO with trace elements
At the bottom of the cardboard packaging for the 36-capsule bottles is to be found the indication ‘Yeast enriched with minerals’, ‘dietary supplement’. The back of the cardboard packaging carries the following text:
‘Introduction: Recent research shows that the earth is losing minerals, while our bodies’ need for these ‘new vitamins’ of the twentieth century is greater than before. [C.] Laboratories produce a range of products specially enriched with minerals to make up for these deficiencies in our diet.’
The analysis in grammes for every 100g states:
Protein 50
Fat 6
Carbohydrate 36
Vitamin B1 30
Vitamin B6 4
Energy value 398Kcal/1667KJ
The analysis also indicates, as applicable, the levels of copper, zinc or calcium to be the following:
On the bottle of zinc capsules, ‘Zinc 3000’.
On the bottle of copper capsules, ‘Copper 4’.
On the bottle of calcium capsules, ‘Calcium 50’.
Furthermore, there is a precise indication of how each of these elements is supposed to help the human body:
(a) zinc aids reproduction and sexual development; ‘it helps the body to fight infection more effectively’;
(b) copper ‘activates our systems of defence against infection - helps combat inflammation’; and
(c) calcium is ‘essential for strong bones - it also improves the circulatory nervous system’.
The dosage, which depends on whether the capsules contain zinc, copper or calcium is then given, under the heading:
‘Directions for use’.
The back of the cardboard packaging carries the mention, at the bottom, ‘[C.] Laboratories PARIS’, after specifying that this laboratory has ‘been advised by Dr P. W.’, an oligotherapist (sic).
Therefore, these products, which contain an amalgam of various different substances, are presented as capable of contributing to the prevention or cure of human diseases.
They are medicinal products within the meaning of the above-mentioned legislation.
(2) 70% STRENGTH MODIFIED ALCOHOL 120 ML is sold in 120ml bottles. The label bears the above words and, in the bottom left-hand corner, on a blue and green background, four small white squares in the shape of a cross, irresistibly evoking the image of a pharmacist’s sign. To the right of this, in large white letters on the same blue and green background, the name ‘[V.] Laboratories, PARIS’ appears with, in smaller letters, its address.
The product in question smells strongly of camphor.
Thus the way in which this product is presented - the bottle, and the cross alongside the name ‘[V.] Laboratories’ - suggests that it is in fact the pharmaceutical product well known by that name and which is used as an antiseptic, particularly in surgery. Therefore, by virtue of its presentation, this is also a medicinal product and not simply a hygiene or beauty product.
(3) 120ml BOTTLE OF 10-VOLUME HYDROGEN PEROXIDE. This bears the words ‘do not swallow’ and ‘in the event of contact with the eyes, rinse immediately’. It has the same white cross and words ‘[V.] Laboratories PARIS’ as the modified alcohol mentioned above, on a pale blue and darker blue background. For the same reasons, it evokes the medicinal product known by that name. This is another medicinal product by virtue of its presentation, which distinguishes it from a mere hygiene or beauty product.
(4) ‘VITAMIN (500)’ is sold in cardboard packets of 24 chewable tablets, on which is printed: (a) the white cross described above and the name ‘[V.] Laboratories PARIS’, on a yellow and orange background; (b) the recommended dosage, specifying that vitamin C should not be taken at the end of the day; and (c) the composition of each tablet, namely: coated ascorbic acid and sodium ascorbate (with an indication of the quantities); and the excipient, a compound of several substances.
This is also a medicinal product, at least by virtue of its presentation, since there is nothing to distinguish it from a genuine pharmaceutical product which has had to meet the required standards in terms of dosage, quality control and production. It is of little importance whether the medicinal product really has the effect claimed or not; on the other hand, there are known contra-indications to the excessive use of vitamin C."
11. Mr Cantoni appealed to the Court of Cassation on points of law. He complained in particular that there had been a violation of Article 7 para. 1 of the Convention (art. 7-1) and of Articles L. 511, L. 512 and L. 517 of the Public Health Code (see paragraph 18 below). He contended that, especially when applied to parapharmaceutical products, the notion of medicinal product, as defined in the provisions on which his conviction had been based, was not sufficiently clear to enable him to determine with accuracy what acts would incur criminal liability.
On 29 May 1990 the Criminal Division of the Court of Cassation dismissed the appeal in the following terms:
"... the appellate court held, referring to the wording on the cardboard packaging and bottles containing the above-mentioned products, that these products were presented as being capable of contributing to the prevention and cure of human diseases and that, therefore, they constitute medicinal products within the meaning of Article L. 511 of the Public Health Code.
The Court of Appeal thus gave a proper legal basis for its decision without laying itself open to the complaints put forward ... The provisions of Article L. 511 of the Public Health Code ... are not contrary to the principle that only the law can define a criminal offence and prescribe a penalty; nor are they incompatible with the instruments referred to in the grounds of appeal ..."
12. According to Article 1 of the Community Directive of 26 January 1965 (Directive EEC 65/65, OJ no. L. 369 of 9 February 1965), as amended on several occasions:
"... the following shall have the meanings hereby assigned to them ...
2. Medicinal product:
Any substance or combination of substances presented for treating or preventing disease in human beings or animals.
Any substance or combination of substances which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying physiological functions in human beings or in animals is likewise considered a medicinal product."
13. The Court of Justice of the European Communities has received several references for preliminary rulings concerning the interpretation of that definition. In its Van Bennekom judgment of 30 November 1983 (case 227/82 [1983] ECR 4 3883), it held as follows in respect of vitamin preparations:
"It is ... necessary to take the view that a product is ‘presented for treating or preventing disease’ within the meaning of Directive 65/65 not only when it is expressly ‘indicated’ or ‘recommended’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, regard being had to its presentation, have an effect such as is described in the first part of the Community definition.
In particular the external form given to the product in question - such as that of a tablet, pill or capsule - may in this connection serve as strong evidence of the seller’s or manufacturer’s intention to market that product as a medicinal product. Such evidence cannot, however, be the sole or conclusive evidence, since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products would also be covered.
... substances such as the vitamin preparations in issue, which are not ‘indicated or recommended’ expressly as being suitable for curing, treating or preventing an infection, may nonetheless constitute substances ‘presented for treating or preventing disease’ within the meaning of the Community definition of ‘medicinal products’ contained in Directive 65/65.
...
It is ... apparent from the file and from the observations submitted to the Court, taken as a whole, that it is impossible in the present state of scientific knowledge to state whether the criterion of concentration alone is always sufficient in order to be able to determine whether a vitamin preparation constitutes a medicinal product; still less therefore is it possible to specify the level of concentration above which such a vitamin preparation would fall within the Community definition of a medicinal product.
The answer to be given to the national court should therefore be that the classification of a vitamin as a medicinal product within the meaning of the second part of the definition in Directive 65/65 must be carried out case by case, having regard to the pharmacological properties of each such vitamin to the extent to which they have been established in the present state of scientific knowledge." (paragraphs 18-20 and 28-29)
14. The Court of Justice has confirmed this approach on several occasions, clarifying certain points. Thus in its Delattre judgment of 21 March 1991 (C-369/88 [1991] ECR 1487), concerning eleven different products, including slimming products and preparations to combat tiredness, it stated:
"... a product may be regarded as a medicinal product by virtue of its presentation if its form and the manner in which it is packaged render it sufficiently similar to a medicinal product and, in particular, if on its packing and the information provided with it reference is made to research by pharmaceutical laboratories or to methods or substances developed by medical practitioners or even to testimonials from medical practitioners commending the qualities of the product in question. A statement that a product is not a medicinal product is persuasive evidence which the national court may take into consideration, but it is not in itself conclusive." (paragraph 41)
15. In the Monteil and Samanni judgment of 21 March 1991 (60/89, [1991] ECR 1 1547), concerning 2% strength eosin and 70% strength modified alcohol, the Court of Justice held:
"... the concept of ‘presentation’ of a product must be broadly construed and a product is ‘presented for treating or preventing disease’ within the meaning of Directive 65/65 not only when it is expressly ‘indicated’ or ‘recommended’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, having regard to its presentation, have the properties in question.
... the external form given to the product in question may serve as strong evidence, but is not the sole or conclusive evidence; it must be stated that the ‘form’ must be taken to mean not only the form of the product itself but also that of its packaging, which may, for reasons of marketing policy, tend to make it resemble a medicinal product, and account must also be taken of the attitude of an averagely well-informed consumer, in whom the form given to a product may inspire particular confidence similar to that normally inspired in him by proprietary medicinal products, having regard to the safeguards normally associated with the manufacture and marketing of the latter type of product.
...
... it is for the national authorities to determine, subject to review by the courts, whether the eosin of a strength of 2% and modified alcohol of a strength of 70% constitute medicinal products by virtue of their function within the meaning of the second sub-paragraph of Article 1 (2) of Directive 65/65. In that regard, account must be taken of the adjuvants also entering into the composition of the product, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail.
...
... although in principle the member States may reserve to pharmacists the right to make retail sales of products that fall within the Community definition of medicinal products and although, in those circumstances, their monopoly over those products may be presumed to constitute an appropriate way of protecting public health, evidence to the contrary may be produced with respect to certain products whose use would not involve any serious danger to public health and whose inclusion within the pharmacists’ monopoly would seem manifestly disproportionate, that is to say contrary to the principles laid down by the Court for the interpretation of Articles 30 and 36 of the Treaty.
If pharmacists are granted a monopoly of other products, such as ‘parapharmaceutical products’, which may be of widely varying kinds, the need for such monopoly in order to protect public health or the health of consumers must, regardless of how the products concerned are classified under national law, be established in each individual case, and those two aims must not be obtainable by measures less restrictive of intra-Community trade.
It is for the national court to decide, having regard to those criteria, whether the action before it is well-founded." (paragraphs 23-24, 29 and 43-45)
16. In the Upjohn judgment of 16 April 1991 (C-112/89 [1991] 1 ECR 1703), the Court of Justice recalled that:
"It is for the national court to determine on a case-by-case basis the classification of each product having regard to its pharmacological properties as they may be ascertained in the current state of scientific knowledge, to the way in which it is used, to the extent to which it is sold and to consumers’ familiarity with it." (paragraph 23)
17. Finally in the Ter Voort judgment of 28 October 1992 (C-219/91 [1992] ECR 5485), the Court of Justice held:
"... a product recommended or indicated as having prophylactic or therapeutic properties is a medicinal product within the meaning of the provisions of the first subparagraph of Article 1 (2) of Directive 65/65, even if it is generally regarded as a foodstuff and even if in the current state of scientific knowledge it has no known therapeutic effect.
...
The conduct, action and approaches of the manufacturer or the seller which disclose his intention to make the product he markets appear to be a medicinal product in the eyes of the averagely well-informed consumer may therefore be conclusive for the purposes of deciding whether a product should be regarded as a medicinal product by virtue of its presentation." (paragraphs 21 and 26)
18. At the material time, the relevant provisions of the Public Health Code were as follows:
"‘Medicinal product’ shall mean any substance or combination of substances presented for treating or preventing disease in human beings or animals and also any product which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying their physiological functions.
In particular, the following shall be considered as medicinal products:
products referred to in Article L. 658-1 of this Code:
which contain any substance having a therapeutic effect as defined in paragraph 1 above; or
containing a greater dosage or concentration of poisonous substances than that laid down in the list referred to in Article L. 658-5 of this Code, or containing poisonous substances which do not appear on that list;
dietary products containing chemical or biological substances which are not themselves foodstuffs but which are added to dietary products, either to give them special properties which are sought after for the purposes of dietary therapy or to make them suitable for use in medical tests.
..."
"Only pharmacists may ...:
(1) prepare medicinal products for use in the treatment of human beings;
...
(3) sell, whether wholesale or retail, or otherwise supply the public with such products or articles;
..."
"Any person who knowingly carries out acts whose performance is restricted exclusively to pharmacists, without being qualified to act as a pharmacist shall be sentenced to a fine of between FRF 2,400 and FRF 12,000 and, if the offence is repeated, to a fine of between FRF 4,800 and FRF 24,000 and to a term of imprisonment of between six days and six months, or to either of these penalties."
19. On the basis of the above provisions the courts have classified products as medicinal products by virtue of their function, by virtue of their presentation or by virtue of their composition.
20. According to the information provided to the Court, the courts sitting as tribunals of fact are divided on the question whether the products for whose sale the applicant was convicted are medicinal products within the meaning of Article L. 511 of the Public Health Code.
Thus vitamin C was classified as a medicinal product by the Courts of Appeal of Douai (9 April 1987), Poitiers (17 December 1987), Angers (5 May 1988) and Versailles (22 January 1996 in plenary session). However, decisions taking a contrary view were given by the Courts of Appeal of Douai (20 February 1988, 28 October 1988 and 23 March 1989), Angers (30 January 1989), Colmar (23 March 1988), Dijon (15 December 1988) and Paris (23 May 1995).
70% strength alcohol was designated as a medicinal product by the Courts of Appeal of Poitiers (4 December 1986 and 28 January 1987), Aix-en-Provence (17 November 1987) and Colmar (23 March 1988), but not by the Courts of Appeal of Dijon (18 May 1988 - four judgments - and 15 December 1988), Limoges (18 November 1988), Paris (14 December 1988 and 21 February 1995) and Douai (23 March 1989).
Mineral supplements (oligo-éléments) have been regarded as medicinal products by the Courts of Appeal of Poitiers (17 December 1987) and Angers (5 May 1988), but not by those of Colmar (23 March 1988), Dijon (18 May and 15 December 1988), Angers (30 January 1989) and Douai (23 March 1989).
As regards 10-volume hydrogen peroxide and 1% or 2% strength eosin, the majority of the courts sitting as tribunals of fact consider that these products are mere hygiene products, for example, in respect of hydrogen peroxide, the Courts of Appeal of Colmar (23 March and 18 May 1988), Douai (28 October 1988) and Paris (14 December 1988); and, in respect of eosin, the Courts of Appeal of Dijon (18 May 1988) and Paris (14 December 1988 and 21 February 1995).
21. To date the Court of Cassation has always either upheld decisions classifying a parapharmaceutical-type product as a medicinal product (judgments of 4 April 1957, 19 February 1959, 24 July 1967, 23 November 1967, 28 May 1968, 13 April 1976, 5 May 1981, 6 December 1988 - two judgments -, 29 May 1990 - see paragraph 11 above - and 25 May 1994), or quashed decisions refusing to accord this designation to such products (judgments of 19 December 1989 - three judgments -, 8 March 1990, 6 March 1992 - plenary court -, 25 May 1994 - two judgments).
NON_VIOLATED_ARTICLES: 7


ITEMID: 001-71305
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF POSEDEL-JELINOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1;Remainder inadmissible
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1936 and lives in Split.
5. The applicant was a holder of a specially protected tenancy on a flat in Split. Under the legislation in force, all holders of specially protected tenancies were entitled to buy their flats under favourable terms, provided that they purchased only one flat. In 1993 the applicant purchased that flat and subsequently donated it to her son.
6. The applicant’s late husband had a specially protected tenancy on another flat in Split. He died in 1995, before he could exercise the right to purchase that flat.
7. The applicant, as her husband’s heir, instituted administrative proceedings for acknowledgment of her specially protected tenancy. Her tenancy on the second flat was acknowledged on 17 April 1997.
8. On 23 October 1998 the applicant instituted civil proceedings in the Split Municipal Court (Općinski sud u Splitu), requesting the court to order the City of Split to conclude a flat purchase agreement with her.
9. On 30 April 1999 the applicant filed a motion for withdrawal of the first-instance judge. On 10 May 1999 her motion was dismissed because there was no evidence that the judge was biased.
10. On 13 July 1999 the Municipal Court dismissed the applicant’s claim. It found that the applicant had already bought one flat as a holder of a specially protected tenancy and that she had no right to buy another one.
11. On 13 October 2000 the Split County Court (Županijski sud u Splitu) dismissed the applicant’s appeal for the same reasons.
12. In 2000 the applicant proposed to the competent State Attorney’s Office (Državno odvjetništvo) to file a motion for the protection of legality (zahtjev za zaštitu zakonitosti), an extraordinary remedy under the domestic law. Her proposal was denied on 20 February 2001.
13. Meanwhile, on 4 December 2000 the applicant also filed a constitutional complaint claiming that the Municipal Court and the County Court, in their judgments of 13 July 1999 and 13 October 2000, had violated her right to respect for home and property.
14. The Government submit that throughout the proceedings the applicant was filing various submissions to the Constitutional Court (Ustavni sud Republike Hrvatske). In one of them, a letter dated 27 February 2001, the applicant requested the Constitutional Court to “terminate all judicial actions and remand the case to the County Court”. Further letters of the applicant, from November 2001 onwards, consisted of rush notes.
15. On 30 June 2004 the Constitutional Court dismissed her complaint as ill-founded.
16. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with further amendments) (“the Act”) regulates the conditions of sale of flats let under specially protected tenancies. Section 1 of the Act entitles the holders of specially protected tenancies on publicly-owned flats to purchase such flats under favourable conditions, provided that each holder buys only one flat.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109017
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: URUCI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Dashamir Uruçi, is an Albanian national who was born in 1948 and lives in Tirana. He is represented before the Court by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Meneri and Ms E. Hajro.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 5 June, 3 July and 14 October 2001 the applicant and his wife were the subject of articles in the daily newspaper “Rilindja Demokratike” (“the newspaper”).
4. On 29 October 2001 the applicant initiated criminal proceedings against B. K, the author of the press article which was published on 14 October 2001. On 4 July 2002 the proceedings were discontinued by a decision of the Tirana District Court (“the District Court”) pursuant to the Amnesty Act of 2002.
5. On 3 October 2002 the applicant lodged a civil action against the newspaper’s editorial board (redaksia e gazetës) represented by its editor-in-chief and sought non-pecuniary damage. On 21 January 2003 the Tirana District Court decided that the applicant’s personality and honour had been seriously tarnished by the press articles. It ordered the payment of 1,000,000 Albanian leks (approximately 7,000 euros at the time) to the applicant.
6. On an unspecified date Rilindja Demokratike sh.p.k. (“the company”), a limited liability company registered under Albanian law and which is the owner of the newspaper, filed an appeal. The appeal was signed by the newspaper’s editor-in-chief. The company argued, inter alia, that the editorial board did not constitute a legal entity and could not be a party to the said legal proceedings. Therefore, the court was under a duty to replace the defendant by summoning the company in its place, an act which was never carried out.
7. On 22 May 2003 the Tirana Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It held that since the articles had been selected for publication by the editorial board, the latter was liable in its obligations towards third parties.
8. On 20 June 2003 the company appealed to the Supreme Court, relying on the same grounds of appeal as before the Court of Appeal. The appeal was signed by the newspaper’s editor-in-chief. On 23 April 2004 the Supreme Court declared the appeal inadmissible as it did not include any of the grounds of appeal prescribed by the Code of Civil Procedure (“CCP”).
9. On 11 July 2003 the District Court issued an execution writ in respect of the District Court’s decision of 21 January 2003. On the same day the bailiff notified the newspaper’s editorial board to comply with the judgment within ten days from its notification. The bailiff drew their attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily.
10. On 30 September 2003, following the failure of the editorial board to comply with the judgment, the bailiff ordered the attachment of the funds in the newspaper’s bank accounts. According to the information received by the banks involved, it was apparent that the newspaper’s editorial board had no bank accounts, except for one at the National Commercial Bank, which had virtually no available funds.
11. On 5 July 2004 the bailiff decided to discontinue the enforcement proceedings (pushojë ekzekutimin) on the ground that the newspaper’s editorial board had no assets.
12. The applicant contested the order and it would appear that he applied again to the bailiff. On 18 November 2004 and 21 April 2005, respectively, the bailiff ordered the seizure of funds in the newspaper’s editorial board’s bank accounts and served the order on the banks concerned in the territory of Albania.
13. The banks concerned reconfirmed that the newspaper’s editorial board did not hold any accounts. On 4 May 2005 the National Commercial Bank informed the bailiffs that there were no funds in the newspaper’s editorial board’s bank account.
14. On 1 November 2005 the applicant sent a letter to the Minister of Justice informing him of the continuous non-enforcement of the District Court’s judgment of 21 January 2003.
15. On 17 November 2005 the General Bailiff’s Directorate informed the applicant that their efforts in 2003 and 2005 had been unsuccessful owing to the lack of available funds in the newspaper’s editorial board’s bank account.
16. On an unspecified date it would appear that the applicant lodged a complaint with the Constitutional Court on account of the non-enforcement of a final court judgment.
17. On 14 December 2005 the Constitutional Court by way of an administrative letter informed the applicant that it had examined his request and had decided that the issues raised therein were outside its jurisdiction.
18. On 15 April 2009 the Government informed this Court of a District Court’s decision of 18 December 2007 which had declared invalid the writ of execution of 11 July 2003. The proceedings in question were brought by the newspaper’s company, following – it would appear – the attempted enforcement of the decision against the company. The applicant had been summoned to intervene as a third party to those proceedings. In its decision, which was given in absentia, the District Court stated that the writ could not be enforced against the newspaper’s company as it had never been a party to the domestic legal proceedings. The District Court further added that, since the newspaper’s editorial board was neither a legal entity nor a physical person, having regard to the development and application of the law as it stood at the material time in 2007, the writ of execution remained non-enforceable.
19. The Albanian Constitution, in so far as relevant, reads as follows:
“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“The Constitutional Court shall determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.”
20. Section 30 of the Constitutional Court Act stipulates the deadline for the submission of applications before that court. Individual applications for alleged violations of constitutional rights must be submitted no later than two years after the commission of the violation.
21. The same time-limit of two years applies in the event of the notification of a final judicial decision.
22. The Constitutional Court first accepted that the non-enforcement of a final court decision constituted a breach of an appellant’s right to a fair hearing in judgment no. 6/06 of 31 March 2006. Prior to that, the Constitutional Court used to dismiss such applications as falling outside its jurisdiction.
23. A detailed outline of the Constitutional Court’s case-law as regards the non-enforcement of final court decisions has been described in this Court’s judgment in Gjyli v. Albania, no. 32907/07, §§ 21-27, 29 September 2009.
24. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions.
25. Article 458 of the CCP provides for the possibility of a party to seek leave to appeal out of time.
26. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP.
27. Under Article 527 the bailiff is empowered to seize the debtor’s loans as well as movable and immovable property to the extent necessary for the enforcement of monetary obligations. At the debtor’s request, seizure may also be imposed on another property if the bailiff considers that it satisfies the creditor’s needs pursuant to Article 528.
28. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeal has no suspensive effect on the execution.
29. The bailiff may decide to discontinue execution in accordance with Article 616 of the CCP if: a) the debtor complies with the execution writ; b) the creditor renounces, in writing, his right to the enforcement; c) the execution writ is repealed; ç) the debtor’s civil action in accordance with Article 610 of the CCP has been accepted by a final court decision; d) the bailiffs alone or in cooperation with the creditor do not find any assets belonging to the debtor within 6 months from the start of the enforcement proceedings. The parties may challenge the bailiff’s decision to discontinue enforcement at the district court in accordance with Article 617 of the CCP.


ITEMID: 001-121992
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: DREIBLATS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
TEXT: 1. The applicant, Mr Uldis Dreiblats, is a Latvian national, who was born in 1960 and lives in Rīga.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
3. During the municipal elections of 2005 the election results in one of the municipalities were annulled because the election procedure had been breached. Shortly before new elections took place in August 2005, the authorities carried out an investigative operation involving phone tapping. P., a candidate in the elections, was among those whose telephone conversations were recorded. He was head of a company which, at about the same time, had been unexpectedly inspected by the tax authorities (VID Finanšu policija). The police discovered various shortcomings in the company’s accounting records as well as alleged tax evasion, and criminal proceedings were instituted.
2. Criminal proceedings leading to the order to disclose journalist’s source (first set of proceedings)
4. On 10 August 2006 the newspaper “Neatkarīgā Rīta Avīze” published an article entitled “Scandal. [Political] party’s black money cash-box discovered?” (“Skandāls. Vai atklāta partijas melnā kase?”). It contained, inter alia, transcripts of P.’s telephone conversations recorded in August 2005. The conversations reflected P.’s attempts to use his political contacts to settle a problem with the tax authorities. The conversations also raised questions as to the unofficial financing of the political party of which P. was a member.
5. The published telephone conversations had been obtained in the course of an investigative operation carried out by the Security Police (Drošības policija) and were therefore considered as classified operational information. On 10 August 2006 the Security Police instituted criminal proceedings under section 94 of the Criminal Law for breach of confidentiality. No charges were brought.
6. It appears from the case-file that the investigating authorities searched the office of the newspaper concerned and seized an audiotape of the impugned conversations.
7. On 15 August 2006 the applicant, who was a journalist at the aforementioned newspaper and the author of the article, was asked by the Security Police to give a statement in the criminal proceedings. Invoking his journalist’s privileges, the applicant refused to disclose the source of the recorded telephone conversations.
8. Following a request by the Security Police, on 5 September 2006 the investigative judge of Rīga City Centre District Court, after having heard the prosecutor and the applicant, upheld the part of the request concerning the disclosure of the source of the published telephone conversations.
9. On 20 September 2006 the Rīga City Centre District Court dismissed an appeal lodged by the applicant. The judge noted, inter alia, that the investigation into the breach of confidentiality had not identified any suspects and therefore had not established at what level those responsible for disclosing the classified information had accessed it. The decision stated that even if other means of investigating could have been deployed, in a period when Latvia was preparing to host a NATO summit the persistence of the aforementioned criminal activities could have put public safety and national security at risk. It concluded that it had been an exceptional situation and that the restrictions of the rights of an individual were proportional to the protection of the public interests.
10. The court also noted that the investigating judge had only partly upheld the request of the Security Police.
11. On 21 September 2006 the Office of the Prosecutor General dismissed a request submitted by the applicant to terminate the criminal proceedings in which the applicant had to give statements (see paragraph 5 above). It explained inter alia, that the criminal proceedings had been instituted not as a result of the publication of the tapped telephone conversations but because of a breach of confidentiality committed by an individual who had been entrusted with the information in the course of his or her official duties. The letter further noted that the sole aim of the request to divulge the journalist’s source was to identify the official responsible for the breach of confidentiality. The response could be appealed against to the Prosecutor General.
12. On 12 October 2006 the Security Police asked the applicant to execute the court order of 5 September 2006. The applicant was also informed about possible criminal liability under section 296 of the Criminal Law in the event of non-compliance with the order. The applicant again refused to disclose the information, invoking his rights as a journalist as well as the right against self-incrimination.
13. In a letter dated 6 December 2006 the Security Police again asked the applicant to submit the information. They also explained that he had the status of a witness in the respective criminal proceedings, so his testimonies could not be used against him and his argument in that respect was unfounded. In his response, the applicant confirmed his refusal to disclose the source.
3. Criminal proceedings against the applicant for non-compliance with the court order to disclose the source (second set of proceedings)
14. On 29 March 2007 the applicant was charged under section 296 of the Crime Act for refusal to comply with a court order.
15. On 10 May 2007 the Rīga City Centre District Court found the applicant guilty and fined him 1,200 lati (LVL) (1,712 euros (EUR)). The court noted that the intentional nature of the offence had been proven by the fact that the applicant had refused to give witness statements in the first set of criminal proceedings. The court concluded that the obligation imposed on the applicant by the court order was not contrary to the second paragraph of Article 10 of the Convention in that by complying with the order the applicant would have prevented a criminal offence from being committed.
16. The appellate court upheld the lower court’s judgment. It noted that in the first set of criminal proceedings the applicant’s journalistic immunity had been overridden by the court order of 5 September 2006. The applicant had been aware of the procedural obligation imposed on him by the court order and therefore his refusal to obey had constituted the mens rea required for the offence provided for under section 296 of the Criminal Law. The appellate court noted that the proportionality of the measure had already been measured at the time of issuing the order. In addition, judging from the responses of the Security Police found in the case file and the investigation in the first set of criminal proceedings, the appellate court concluded that the Security Police had had no other means of disclosing the source of the information.
17. In his appeal on points of law the applicant argued that his activities could not be qualified under section 296 of the Criminal Law as there was a lack of intention on his part. He also relied on a recommendation of the Committee of Ministers of the Council of Europe and contended that the court order had not been proportional.
18. By virtue of sections 584 (2) and 574 (2) of the Criminal Procedure Law, the Senate of the Supreme Court of its own motion extended the limits of the appeal on points of law and found that the Office of the Prosecutor and the lower courts had wrongfully interpreted and applied section 296 of the Criminal Law. In particular, the aforementioned provision provided for criminal liability for the non-execution of judgments or decisions if the execution fell within an individual’s official duties. As that qualification did not apply to the applicant, there was no legal basis for applying the above provision to his non-compliance with the court order. The Senate revoked the lower court’s decision and terminated the criminal proceedings.
19. In January 2008 the applicant asked the Office of the Prosecutor General whether, based on the outcome of the aforementioned criminal proceedings, it would publicly apologise to him, and whether measures had been taken in order to avoid similar situations in the future. In response, the Office of the Prosecutor General indicated that:
“...[t]he Criminal Procedure Law provides for an acquittal or conviction, ... the law does not provide for an obligation on the part of the prosecutor to apologise to someone for having brought charges in proceedings which resulted in an acquittal.”
20. The applicant was informed by the Office of the Prosecutor General of his right to institute civil proceedings for non-pecuniary damages in accordance with the Law on Compensation for Damage caused by State Institutions (Par izziņas izdarītāja, prokurora vai tiesneša nelikumīgas vai nepamatotas rīcības rezultātā nodarīto zaudējumu atlīdzināšanu).
B. Relevant domestic and international law
1. Criminal Law
21. In accordance with section 94, a person who intentionally discloses an official secret, having been warned about the consequences of disclosure but where the offence does not involve espionage, may be sentenced to up to eight years’ imprisonment or receive a fine not exceeding the minimum monthly salary.
22. By virtue of section 296, a person who intentionally fails to execute a court judgment or decision, or delays the execution thereof, will be subject to a fine not exceeding sixty minimum monthly salaries.
2. Criminal Procedure Law
23. Under section 154 of the Criminal Procedure Law (as in force at the material time), a court may order a journalist or editor to indicate the source of published information. An investigating judge will decide on the proposal of an investigator or public prosecutor, having listened to the submitter of the proposal, or a journalist or editor, and having familiarised him or herself with the materials of the case. An investigating judge will take a decision on the indication of the source of information, giving due consideration to the proportionality of the rights of the person and the public interests. The decision may be challenged against to the chairman of the court whose decision is final.
3. Law on the Press and Other Mass Media
24. Under section 22, journalists may choose not to indicate the source of their information. If the person who has provided the information requests that his or her name is not to be indicated, this request shall be binding upon the editorial board. The source of information may be revealed only at the request of a court or prosecutor.
4. Law on Compensation for Damage caused by State Institutions (Par izziņas izdarītāja, prokurora vai tiesneša nelikumīgas vai nepamatotas rīcības rezultātā nodarīto zaudējumu atlīdzināšanu)
25. Section 2 of the Law on Compensation for Damage caused by State Institutions deals with the unlawful conduct of investigative bodies, the Office of the Prosecutor General and the courts and provides that pecuniary and non-pecuniary damages may be awarded, inter alia, in the event of an acquittal for reasons of rehabilitation. Requests for pecuniary damages in the event of an acquittal by the court must be submitted to the Ministry of Justice. In relation to non-pecuniary damages, a person has the right to submit a civil claim to a court of general jurisdiction.
5. Civil Law (Civillikums)
26. Section 5 provides that a judge must be guided by the general principles of law and justice when a court is called upon to adjudicate on its own discretion or when exceptional circumstances have to be taken into account.
6. Recommendation No. R (2000) 7 of the Committee of Ministers to Member States on the right of journalists not to disclose their sources of information (adopted on 8 March 2000)
27. Principle 3 (Limits to the right of non-disclosure)
“a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
- an overriding requirement of the need for disclosure is proved,
- the circumstances are of a sufficiently vital and serious nature,
- the necessity of the disclosure is identified as responding to a pressing social need, and
- member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.”