ITEMID: 001-97286
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BAILEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms Yvonne Bailey, is a British national who was born in 1959 and lives in Denbyshire, Wales. She is represented before the Court by Mr Scott, a solicitor practising in London.
The applicant’s son, Joseph Scholes (“JS”) born on 20 February 1986, hanged himself while in detention at Stoke Heath Young Offenders Institution (“Stoke Heath”) on 24 March 2002. This application concerns issues relating to his death.
By December 2000 three social services investigations had been carried out into allegations of ill-treatment of JS (then 14 years of age), concluding that the allegations were unfounded. During the third, concerns were raised about JS’ mental health. From January 2001 he was treated for depression and the relevant child services reported his behaviour as unpredictable and aggressive. During 2001 his behaviour continued to degenerate and in April 2001 he was referred to a psychiatrist (Dr F, a specialist in child and adolescent psychiatry) who found that he suffered from a conduct disorder with possible co-morbid depressive illness, that he was very vulnerable and that he risked harming himself. On 10 November 2001 an ambulance arrived at JS’ home following reports of his violent behaviour and he was abusive to the ambulance men. He was arrested for affray. A psychiatric assessment (mid-November 2001) diagnosed depressive conduct with abuse of alcohol and other substances and found that JS was a risk to himself and others and that custody would increase the risk of self-harm. Given his unstable family situation, a protection order was made and he was admitted to a local authority children’s home. On 6 December 2001 JS and two other children from the children’s home carried out three street robberies of mobile phones (it was accepted in later proceedings that JS had played a peripheral role).
On 11 December 2001 he was convicted on the prior affray charge. He was sentenced to a one year supervision order: he would continue in the children’s home and follow training and treatment options. JS continued to demonstrate vulnerability and present serious management problems and self-harm risk. Another psychiatrist who examined JS in February expressed much concern about his fragile emotional state, recommending containment and constant vigilance.
On 26 February 2002 he appeared at the Crown Court and pleaded guilty to the three charges of robbery. He was convicted and remanded on bail to the children’s home pending sentencing. In early March 2002 he slashed his face in his room in the children’s home over 30 times. The following day JS was reported as being under a great deal of pressure. He also went missing from the home from 7 to 9 March 2002 but returned of his own volition, after which he was charged with a breach of bail.
At the later hearing at the Crown Court for sentencing on the robbery charges, his counsel drew the trial judge’s attention to the Pre-Sentence Report (prepared by the Trafford Youth Offending Team, “Trafford YOT”) and, in particular, to references to his “history of self harm and ... threatened suicide” and to Dr F.’s belief that the “self harming behaviour may escalate”. Attention was also drawn to a letter from the applicant’s social worker which accompanied the Pre-Sentence Report and which also referred to attempted self-harm and to concern “for his safety and welfare given his history of low mood of self-harm when in distress”. When sentencing JS, the judge referred to those passages and stated that they had to be “most expressly drawn to the attention of the authorities”: that remark was made in the course of his counsel’s submissions and was substantially repeated in the trial judge’s sentencing remarks. The Pre-Sentencing Report concluded that JS would be at particular risk in the event of a custodial order and it recommended (supported by his social worker) a Community Punishment and Rehabilitation Order.
On 15 March 2002 in passing the sentence, the trial judge referred to remarks of the Lord Chief Justice that those who commit street robberies should receive immediate custodial sentences (Attorney General’s Reference Nos. 4 and 7 of 2002 [2002] 2 Cr App (R(S) 77). He made a 2-year detention and training order (a custodial order, “DTO”). JS could have been detained in a Young Offender Institution (“YOI”), in a Secure Training Centre (“STC”) or in a Local Authority Secure Children’s Home (“LASCH”). The Youth Justice Board (“YJB”) placed JS in Stoke Heath YOI and he was transferred on 15 March 2002.
Although his counsel advised in favour of an appeal against sentence (as manifestly excessive), an application for leave was not pursued.
On arrival at Stoke Heath JS was on an open F2052SH form (at risk of self-harm) and placed in the health care unit. He was initially put in strip clothing (simple linen tunic, held together by adhesive strips under which he was naked). He was placed in a cell with reduced ligature points, a surveillance camera and high levels of observations. Within days he was moved to a single cell (in the health care unit) with no surveillance camera or reduced ligature points. Observation was reduced to 30 minute intervals.
An application was made by the Trafford YOT for JS’ transfer from the YOI but, prior to that being decided, on 24 March 2002 JS was found dead, hanging from strips of linen attached to the bars of the window of his cell.
On the day following JS’ death the West Midlands area manager for prisons instigated a prison service investigation (assisted by an advisory panel made up of experts from the Prisons and Probation Ombudsman’s office, Social Services and the YJB) and it was completed on 17 May 2002.
Deaths in custody are also automatically subject to a Serious Incident Review by a senior YJB manager or an independent consultant. A Local Management Report into the circumstances of JS’ death was prepared by the Operations Manager of the YOT (which had completed JS’ Pre-Sentence Report) and it was completed on 17 April 2002. This report was forwarded to the YJB in June 2002 and contributed to the Serious Incident Review. An interim report was presented to the YJB on 18 September 2002. A final report was prepared and presented to the YJB Audit Committee on 11 May 2004 following the receipt of the Coroner’s verdict (see below).
Following advice received from the Social Services Inspectorate and the YJB, the relevant Area Child Protection Committee (ACPC) agreed to conduct a full investigation of JS’ case under Chapter 8 of Department of Health guidance “Working Together to Safeguard Children” 1999. An independent author was commissioned to prepare the overview report and to chair the multi-agency panel established to steer the review process. The “Chapter 8 Case Review” began on 20 September 2002 and the Trafford ACPC adopted the final overview report in the summer of 2004.
On 1 April 2004, during a debate in the House or Lords, one of the questions put to the Government was whether there would be an independent inquiry into the death of JS. Lord Bassam of Brighton responded on behalf of the Government. He noted that the Inquest would resume soon, that that would be complemented by a comprehensive summary of the lessons learned by the various agencies involved (which results would be shared with the applicant) and that, in the meantime, other improvements had been made to reception, protection and healthcare processes including training programmes.
The applicant brought a civil claim against the Home Office and the YJB regarding JS’ death alleging negligence and a breach of the Human Rights Act 1998 (Articles 2 and 3 of the Convention) in relation to his allocation by the YJB to Stoke Heath and his treatment there. She also made a claim against the YJB under Article 14 (in conjunction with Articles 2 and 3 of the Convention) on the basis that the YJB was operating a discriminatory policy under which girls aged 16 years of age, whether vulnerable or not, were given priority over vulnerable boys over 16 years of age, for placement outside the prison service. The civil claim did not challenge the sentence imposed on JS as such a claim would have been prevented by section 9 of the Human Rights Act 1998.
A payment into court was made by the respondents. The applicant’s solicitor and counsel both advised her that the lodgement was a “reasonable offer” and a sum that she could reasonably expect from a court if the entirety of her claim was accepted. (The Court of Appeal later described this sum as “substantial”). She requested but was refused an admission of liability. The applicant felt obliged to accept the lodgement and the proceedings were settled in April 2004, before the Inquest opened.
The Inquest into JS’ death took place between 19 and 30 April 2004. The applicant was legally represented and present. The Inquest heard evidence, either in writing or in person, from 55 witnesses including the Chief Executive of the YJB and the Governor of Stoke Heath. The applicant submitted an expert report which outlined a number of factors which meant that boys of 16-17 years of age were most likely to be allocated to YOIs given the increase in child imprisonment particularly of girls; the increase of periods of custodial detention; and the policy of the YJB to prioritise children of 12-14 years of age for placement in STCs or LASCHs which inevitably reduced places for older juveniles. The above-noted reports of investigations already conducted were before the Coroner and he also commissioned his own expert psychiatric report in which the view was expressed that JS “simply should never have been allocated to Stoke Heath”.
The Coroner defined the scope of the Inquest as follows:
“(a) JS having been sentenced (we cannot go behind the sentence), was all relevant and necessary information available to properly reach a decision as to the appropriate allocation for [JS]?
(b) With that information and the sentencing judges’ remarks, what allocation options were available, what were considered and what criteria [were] used to exercise them? The inquest cannot go into matters of resources, save perhaps for observing that, if it is the case, that lack of resources may have been a factor whether critical or contributory?
(c) Having been allocated to [Stoke Heath] what then should have happened to [JS]?
(d) What should have been the correct approach once [JS] was on the hospital wing? Should more liaison have taken place between the Agencies. Did Stoke Heath have all the necessary relevant information, did it make the correct risk/ care plan assessment?
(e) To what extent did the differing Agencies know what the other was doing? It appears that the Trafford [YOT] were still trying to get [JS] transferred to a [LASCH] whereas those within the [YOI] were seeking to integrate him into the main wing i.e. further within the prison system. On the face of it, these aims conflict.
(f) Should it have been clear that [JS] was to remain on the hospital wing until secure accommodation was found? If so, should [JS] have been told this?
(g) Is it correct that in the light of the experience of others in [JS’] position being successfully integrated into the main wing that it was then right for [JS]? What if any thing was there to distinguish [JS] from any other inmate who had exhibited similar history and symptoms? What if anything could have been done to indicate that [JS] was different to the previous inmates and that he would react in the way that he did?
(h) Allocation and re-allocation I take as the same issue. The fact that the initial allocation did not succeed would that, as a matter of principle, negate the need to continue that process? ...
[Sentencing policy] or change in policy, which may on may not increase the number of children in custody, is not within the scope of this inquest. It is a matter of national interest which should be dealt with at that level.
The Inquisition form completed by the jury recorded a unanimous verdict of “Accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it.” The jury also responded to a “Middleton questionnaire” (R (Middleton) v. West Somerset Coroner and Another [2000] 2AC 182) which had been prepared by the Coroner in consultation with the parties’ legal representatives. A later report prepared by Mr Lambert (see below) summarised the jury Inquest’s conclusions and recommendations as follows:
“Quality of Pre-sentence Information
The Inquest concluded there were weaknesses in both the quality and handling of information at the pre-sentence stage. Although the Jury accepted that the Asset format was an appropriate way to bring together relevant information about the young person, they were critical of the [YOT] for its completion of the Asset assessment material and drew attention to the ‘Don’t Know ‘responses to key aspects of the Asset framework that they considered inadequate. Attention was drawn towards the importance of providing additional documentary evidence to support the Asset judgement, especially where vulnerability was the issue. The Coroner emphasised throughout the importance of providing a good psychiatric assessment of the young person and ensuring that the court and all relevant parties were in possession of this material.
Allocation Arrangements
The Inquest was unanimous in its conclusion that the placement of [JS] in a YOI was not appropriate and that he should have been placed in a [LASCH]. The Inquest heard evidence about the allocation arrangements and the difficulties in matching young people’s needs and appropriate services given the limited capacity of the local authority secure sector. The Coroner expressed great concern about this situation and also drew attention to those vulnerable 16 year olds who, because of their age, appeared even less likely to be able to access a secure children’s home.
The Coroner also recommended that the system for placement should hold open for a longer period the possibility of transfer to more suitable accommodation. Young people who are disturbed and vulnerable need to feel, and be made aware, that their initial placement may be reviewed. The Jury recommended that young people such as [JS] should be held in some temporary intermediate provision outside the main YOI estate while such considerations took place.
Quality of communication
The Coroner and Jury were concerned by what they perceived as failures in the communication arrangements and the passing of information between professionals. They made a general recommendation that these arrangements should be subject to review and improvement. In particular, they drew attention to their concern about the availability of the psychiatrist’s report and the gaps in communication between the [YOT] and Stoke Heath in respect of the transfer application. They also felt that more prominent means should be found by which to signal levels of risk.
Stoke Heath YOI Health Care Centre
The Inquest concluded that the care and attention given to [JS] by the medical, nursing and YOI staff at Stoke Heath Health Care Centre was provided in an appropriate way. However, there was unanimous condemnation of the building and its facilities.
Use of Safe Clothing
The Inquest learnt that [JS] had spent his first four days and nights in the Health Care Centre wearing only safer cell clothing with no underwear. Although this clothing was issued for [JS’] self protection, the Coroner and his Jury were concerned with the possible de-humanising aspects of this approach and recommended that the practice be reviewed.”
The single judge in later judicial review proceedings found that the Inquest was “a model of what was required to discharge the State’s investigative obligation under Article 2”.
On 5 May 2004 the Coroner wrote to the Secretary of State (Rule 43 of the Coroners Rules 1984) requesting a public inquiry:
“Without going behind the sentence [JS] received at this Inquest it does seem to me essential that there is an urgent and comprehensive review of the pre-sentence exercise, the allocation process and the availability and provision of [LASCHs]. The statistics indicate that more young offenders are being sent to custody without a proportionate increase in [LASCHs] to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable. ...
It seemed clear to me that the allocation of disturbed and vulnerable young children (typically 15 and 16 year old boys) should be determined on a needs basis and not a resources basis. This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief, mistaken or not, that recommendations, such as that contained in the pre-sentence report and endorsed by the Sentencing Judge can be implemented ...
In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known.”
On 16 September 2004 the Secretary of State responded to the Coroner that a public inquiry was not necessary given three reviews which he had initiated as regards the broader issues underlying JS’ death:
“In fact the new Sentencing Guidelines Council [“SGC”], established by the Government, and which is chaired by the Lord Chief Justice, is currently considering new guidelines on sentencing for robbery. I think it is right for the [SGC] to be the body which addresses the issues arising from [JS’] sentence, and I am formally asking the [SGC] to do this. I understand why you wanted to recommend a public inquiry to tackle this, but I think that the [SGC] does provide the most appropriate forum.
The operational issues you drew attention to are important and need to be looked into by someone with the necessary expertise to identify the realistic scope for improvement. I am asking David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to do this. David Lambert conducted the recent inquiry into the death of [X]. I enclose a copy of his terms of reference.
The configuration and development of the juvenile secure estate is a longer-term issue, which the [YJB] is addressing as part of its work on a new vision for the future of juvenile custody - on which it will be putting proposals to Ministers later this year. We have asked the [YJB] to take full account of the concerns expressed in the verdict of the inquest jury and relayed in your letter.”
In response to the applicant’s request for a public inquiry, on 16 September 2004 the Parliamentary Under-Secretary essentially repeating the above response of the Secretary of State. By letter dated 20 December 2004 the applicant was again informed that the Secretary of State did not intend to hold a public inquiry.
On 3 December 2004 the Coroner wrote to the Secretary of State re-expressing his concerns about the failure to hold a public inquiry. He welcomed the above-noted three lines of inquiry but was concerned that they might not adequately coordinate between each other.
On 14 December 2004 Parliament’s Joint Committee on Human Rights issued its Third Report of Session 2004-05 on Deaths in Custody. Referring to JS’ death and noting that there had never been a public inquiry into the death of a child in custody, it recommended a public inquiry and, further, that LASCHs should be used wherever possible with use of prison custody reduced to an absolute minimum. The Government’s detailed response to the Committee was published on 10 March 2005 and it, inter alia, referred to the three internal reviews and the Inquest into JS’ death. The three concerns of the Coroner would each be addressed by an appropriate review: the appropriateness of the sentence would be addressed by the SGC, the effectiveness of pre-sentence and placement procedures would be addressed by an operational review by Mr Lambert and the YJB would review whether the juvenile secure estate as then configured was able to fully provide for vulnerable young people. The Government firmly believed that those measures were the most appropriate, useful and focussed.
“The Government agrees with the Committee’s view that [LASCH] should be used wherever possible for children, with the use of Prison Service custody reduced to an absolute minimum. The Government uses only [LASCH] and comparable places in secure training centres for children under the age of 15, and for the more vulnerable 15 and 16 year olds. ... [A]ny sort of custody for young people should be a last resort, and that approach is enshrined in legislation .... For those young people whom the courts do send to custody, the [YJB] seeks to make the best possible use of available accommodation, taking full account of age and other factors that contribute to vulnerability. [LASCH] and [STCs] provide for the youngest trainees. It would not be appropriate for these young people to mix with older juveniles, who are generally placed in a [YOI]. The most vulnerable 15 and 16 year olds are also held outside [YOI]. The [YJB] considers that more provision is needed for vulnerable 15 and 16 year old boys, and its recent consultation paper Strategy for the Secure Estate for Juveniles proposes a new form of ‘intermediate’ accommodation, with smaller-scale units and more intensive staff support for trainees, which would address this need ...
The juvenile secure estate has evolved considerably since it was set up in 2000 and continues to develop. The Government believes the proposals in Strategy for the Secure Estate for Juveniles – the consultation period ends on 28 February – set a clear direction for the future of the estate.”
On 27 August 2004 the Secretary of State requested the SGC to review the JS case during its current consideration of guidelines for robberies. The SGC considered advice from the Sentencing Advisory Panel on sentences for robberies (notably of the type in JS’ case) and of juveniles. The SGC published draft guidelines and consulted publicly. In July 2006 “The Definitive Sentencing Guidelines on Robbery” were published by the SGC. The foreword noted that it was not intended to significantly change the prior practice of non-custodial sentences for the majority of young offenders who committed robbery. Certain recommendations were, however, made as regards the factors to be taken into consideration prior to making custodial sentences on young offenders including emphasising the welfare of the child. The Court of Appeal (see below) noted that the applicant was invited to make representations to the SGC but she submitted to this Court that she could not make an effective contribution to this process as her sole entitlement was to express her views as a member of the public.
Following the adoption of the Criminal Justice and Immigration Act 2008 with additional provisions as regards sentencing young offenders (including a comprehensive list of new community orders and a statutory recognition that a sentencing court must have regard to the welfare of the offender), the SGC then published further draft Guidelines (June 2009) entitled “Overarching Principles - Sentencing Youths”, requesting comments by 28 August 2009. As regards both the underlying principles/approach to sentencing and the choice of sentencing options (non-custodial and custodial sentences), the draft Guidelines emphasised the necessity for the trial court to consider the welfare of the young offender including the high incidence of mental health issues amongst young people in the criminal justice system, the vulnerability of young persons to self-harm (particularly within a custodial environment) and the high risks associated with young offenders in a custodial setting.
The Secretary of State also requested the YJB to take full account of the issues raised in the Inquest and by the Coroner in its current work on the configuration and development of juvenile secure estate.
In November 2004 the YJB published a draft strategy for the juvenile secure estate setting out the assumptions and principles that the YJB would use in developing the secure estate (including enhanced provisions for vulnerable older boys) and the steps it intended to take in the following three years to deliver these within available resources.
The context of the draft report was described as follows:
“... the YJB has sought to incorporate within this strategy the lessons learnt from serious incidents that have occurred in the secure estate for children and young people. This includes a specific request ... to take account of the Coroner’s concerns about the configuration and development of the secure estate in relation to vulnerable young offenders (concerns expressed following the inquest into the tragic death of [JS]).”
Responses were invited from interested parties. The applicant was given a copy of the draft Report and was asked for her views and advice: she did not make submissions as she considered that it was not an independent inquiry as the YJB would not accept its responsibility in JS’ death.
The final report (entitled “Strategy for the Secure Estate for Children and Young People, Plans for 2005/06 to 2007/08”) described the “Context” as including: a central theme of developing secure estate was that services in custody for young people were the same in custody as in the community; the publication of the Government green paper (“Every Child Matters” and the companion document (“Youth Justice – the Next Steps”) which again underlined the necessity to apply community service standards of child care in custody settings; the adoption of the Children Act 2004 (further to the Green Paper) had explicitly placed responsibility for safeguarding and promoting welfare on, inter alia, providers of custody for children and young people, which was the first time that custody providers had been drawn into mainstream children’s legislation in such an explicit way; and it repeated the reference to the lessons to be learned from the death of JS.
The assumptions that underpinned the Strategy were outlined. Custody should be used only as a last resort (citing the United Nations Convention on the Rights of the Child) and the YJB would work with the SGC to agree on an operational definition of “last resort”. Custody should be used particularly sparingly for young offenders because of their dependent, developing and vulnerable status and, while proportionately greater use was made of custody for them in the United Kingdom, the YJB was committed to developing community-based alternatives in which sentencers had sufficient confidence so that their proportionate use of custody for children and young people would fall progressively and the average daily number in custody was reduced; the principle, that punishment of custody lies in the loss of liberty itself and not in any gratuitously punitive aspect of the regime, should apply absolutely; and secure establishments, whatever form they take, were scarce and expensive, and their portfolio and characteristics could only be changed slowly so that the YJB would work closely with existing providers and explore whether additional providers can be encouraged to enter the field. While the demand for places and the Government’s provision of resources for such places were not determined by the YJB, it actively sought to influence both; the type of regime or interventions provided in custody should be based on what research considers was effective in preventing children and young people from offending and reoffending; and the rights of children and young people held in custody should be respected and upheld.
As regards the guiding principles, the YJB’s strategy was aspirational in the sense that it could not be achieved easily or quickly, given its starting point. The guiding principles of the YJB included ensuring a child-based culture, adequate and targeted training, safeguards and services needed to properly protect and assist young offenders.
Finally, it noted that the present portfolio of provision for children and young people in custody remained less than ideal and that its ambition was to create a suitable secure estate based on the above principles as rapidly as reasonably possible. The speed at which the YJB would achieve its ambitions would depend on the sentencing rates and resources attributed so that even a three-year strategy might be ambitious but the YJB was working with the relevant bodies on these two issues. The YJB went on to make detailed proposals for consolidating and enhancing the provision of places and services in the secure estate including for STCs, YOIs and LASCHs.
It concluded that evidence of independent assessors demonstrated that there had been significant achievements in commissioning secure accommodation for children and young people since April 2000, even if much remained to be done. An update to the strategy was published in 2007.
Mr Lambert (a former Assistant Chief Inspector of the Social Services Inspectorate and Chairman of the Norfolk ACPC) examined the operational issues arising from JS’ case and, notably, the roles of the YOT, the YJB as well as the YOI itself. Having sent a draft of the Report to the Home Office in December 2004, he requested the applicant to make submissions. The applicant’s solicitors requested a copy of the report. She maintained that she heard nothing further until August 2005 when Mr Lambert contacted her indicating that a final draft of the Report had been submitted to the Minister: the applicant again requested a copy of the report and, while Mr Lambert was not at liberty to disclose the Report, he wished to meet with her. A further request for a copy of the report was made. The applicant was not provided, as she requested, with access to the draft report, and she did not therefore make submissions.
His final report entitled “Review of the effectiveness of Operational Procedures for the Identification, Placement and Safeguarding of Vulnerable Young People in Custody” was published by the Home Office on 18 September 2006. The agreed scope of the review, including the agreed Terms of Reference, was described in the Report as follows:
“The review will analyse:
- The policies, procedures and practices for the placement of young offenders, taking account of any recommendations that the [YJB] or Home Office have made since [JS’] death, and whether further improvements can be made. The review will refer to the Prison Service investigation, the Serious Incident Review on [JS] undertaken by the YJB and the work commissioned by the YJB Placement Programme Board and the Trafford ACPC Chapter 8 review. These contain recommendations that encompass both correctional services and the safeguarding of children.
The review will consider:
- Whether the information and documentation that a [YOT] prepares for sentencers on young people at risk of a custodial sentence/placement is adequate and appropriate, taking into account the work that the YJB is doing on the management of risk in the community.
- Whether improved guidance is needed on the [YOT’s] assessment of vulnerability or risk.
- Whether existing methods for the transfer of documentation between the [YOT], the court, the [YJB] Placements Team and the receiving establishment need improvement.
- The adequacy of YOI reception procedures and arrangements for the care of vulnerable trainees.
- The appropriateness of protective clothing for young offenders at risk of self-harm.
- Whether relevant changes are needed to staff training, in particular regarding the quality of the Asset assessment form, the risk of harm section and advice that the YJB is producing for [YOTs]: and the reception and care of vulnerable trainees.
The review will be a fundamental part of informing the family of [JS] about progress and ensuring action is undertaken by the key agencies following his death.
The review, in addition to findings on the matters listed above, will include a summary account of all investigations that have been conducted into [JS’] death and the operational issues arising from them. It will outline any implications for the juvenile secure arrangements as a whole and identify any recommended improvements. The review may make recommendations to the Minister on any good practice that is relevant to or becomes apparent during the review.”
The Report went on to highlight the main themes arising out of the three internal investigations and the Inquest and from the terms of reference. It summarised the conclusions of the investigations and Inquest, the subsequent domestic developments and any further recommendations:
As to the “Appropriateness of Placement”, the Report stated:
“All of the Investigations into the circumstances of the death in custody of [JS] concluded that young men who presented his level of risk are not appropriately placed in YOIs and that every effort should be made to secure their placement in a [LASCH]. There should be consideration of the development of discrete facilities within the YOI sector for young people demonstrably at risk of self-harm or suicide.”
As to “Quality of Assessment Work and the Management of Risk”:
“All the Investigations concluded that, by one means or another, the court considering [JS’] sentence had received explicit advice about his vulnerability, his history of self-harm and attempted suicide. Comparison was drawn between the quality of the pre-sentence report and the Asset assessment, the latter being considered incomplete and lacking in supporting evidence.”
As to “Placement of children and young people at High Risk in the Secure Estate”:
“All the Investigations closely examined the operations of the YJB Placements Team. There was a generally agreed conclusion that, accepting the complexity of the team’s task and the difficulties inherent in managing three sectors with differential levels of availability, more clarity needed to be introduced into the placement arrangements. Issues concerning the quality and transmission of information, and the arrangements for transfer between placements were also highlighted.”
As to “Reception of young people into YOIs”
“The Investigations into [JS] death concluded that at his admission all reception procedures in force at that time were carried out satisfactorily and that [JS] received a high level of care and attention. However, all four Investigations expressed reservation and uncertainty about the robustness of the transmission of information between the [YOT] and the YOI; in particular the timely availability of his psychiatric history. “
As to “Care and Sentence Planning”:
“One of the key issues identified by the various investigations into the death of [JS] related to the arrangements to plan for his stay at the YOI. There were concerns about the organisational arrangements for the planning meeting and its optimum timeliness. Some of the investigations recommended that a much shorter time than the YJB National Standard ... of within 10 working days of admission should now be adopted. The Investigations also expressed concern about arrangements for recording at YOIs”
As to “Provision of Health Care”
“Each of the four Investigations into the death of [JS] concluded that the care and attention given to Joseph by the medical, nursing and YOI staff at the YOI Health Care Centre was of good quality and appropriate to his level of need. There was unanimous criticism of the physical state of the Health Care Centre.”
As to “Management of self-harm and suicide in YOIs”
“Overall, the Investigations into the death of [JS] concluded that the YOIs suicide awareness strategy was sound and that it was applied with care and attention. The Prison Service Investigation recommended that some tightening of procedures would improve effectiveness.
As to “Accommodation of young people at risk in ‘safer’ cells:
“When in the Health Care Centre at Stoke Heath YOI, [JS] was subject to a prescribed 30 minute observation regime. As [JS] died within 20 minutes of the last recorded observation, the Trafford ACPC Chapter 8 Review recommended that YOIs adopt a 15 minute observation interval where young people are assessed as at serious risk of self-harm and are accommodated in a ‘safer’ cell. The Chapter 8 Review recommended continuous, direct observation in all other circumstances. The Prison Service Investigation recommended that telephone conversations of trainees under ‘at risk’ supervision be monitored.”
As to “Use of Protective Clothing”
“At the [the Inquest] the Jury were concerned to learn about the use of protective clothing and recommended a review of the practice.”
As to “Anti-Bullying Strategies”:
“The Investigations into the death of [JS] all agreed that one aspect of YOI life that he feared or that fed his apprehension about his sentence was the threat or belief that he would be subject to bullying should he move from the Health Care Centre to a residential unit.”
The conclusion in the executive summary of this report noted:
Since [JS’] tragic death, a wide range of measures have been taken to improve safeguarding of young people in [YOIs]. This [operational review] has carefully examined them and made recommendations for improvement. The YJB and the Prison Service have shown a commitment to change and have developed a set of policies and procedures that focus directly on safeguarding issues and have the potential capacity to deliver a more effective and safer service. But much more can be and needs to be done.”
On 21 February 2005 the applicant requested leave to apply for judicial review arguing that two central issues regarding the death of JS remained unresolved despite the Inquest: the extent to which the sentencing policy resulted in JS being detained in conditions that gave rise to an unacceptable risk of suicide and, secondly, the reasons why JS was allocated to a YOI rather than a LASCH (including any lack of resources contributed to that allocation). The applicant maintained that the Secretary of State, in deciding not to convene a full public inquiry, had failed to comply with his duty under Article 2 of the Convention to investigate the circumstances of the death of JS. The Secretary of State argued that policy issues were beyond the scope of Article 2 and, alternatively, that the combination of the three internal investigations, the Inquest and the three reviews proposed by the Secretary of State satisfied the requirements of Article 2 of the Convention. On 13 June 2005 the applicant was granted leave to apply for judicial review. By judgment delivered 16 January 2006 the High Court dismissed the judicial review proceedings. On 1 March 2006 leave to appeal to the Court of Appeal was granted.
On 17 October 2006 the Court of Appeal rejected the appeal.
The principal judgment was that of Lord Justice Pill. He noted the evidence at the Inquest to the effect that JS should not have been at Stoke Heath but at a LASCH, that he would have been placed in a YOI even had the judge’s remarks been considered by the YJB and, given the available resources, it was almost inevitable, or overwhelmingly likely, that JS would go to a YOI. The trial judge was not at fault: his sentence was lawful, he specifically requested that information as to JS’ vulnerability be passed to the appropriate authorities and he was not obliged to inquire further since the duty to place offenders is upon the Secretary of State. While Lord Justice Pill did not exclude that a sentence could itself breach Articles 2 or 3 of the Convention, the present sentence did not.
The evaluation of the circumstances in which JS died was “thorough and no complaint about it is made in an Article 2 context”. Where failures were identified, however, investigation of the facts did not complete performance of the State’s obligations “unless consideration is given to effecting improvements” (Lord Justice Pill referring to domestic jurisprudence and to Öneryıldız v. Turkey, (no. 48939/99, 18 June 2002). He continued:
“Where the failures are of the kind identified in the present case, I do not consider that the Commission’s statement in Taylor that “wider questions” fall outside the scope of Article 2 is, as the law has now been interpreted, applicable to render unnecessary enquiries beyond the factual investigation provided by the Inquest. The statement in Jordan that detailed investigation of policy issues may not be necessary was in the context of a defective investigation of the facts. Such a defect does not necessarily give rise to policy issues. ...
The evidence at the Inquest revealed a worrying situation with regard to the detention of young offenders. On the evidence, vulnerable young offenders, such as [JS], have been detained in conditions unsuitable for their safety and their lives. That having been revealed in a properly conducted Inquest, there is, in my judgment, a duty upon the Secretary of State to investigate further what remedial action can be taken. Thorough investigation of facts at an Inquest would have little value in preventing a repetition and in maintaining public confidence, unless followed up.”
As a fact finding tribunal, the Inquest jury operated effectively. However, the jury could not be expected to give answers to questions of resources and policy which could provide reliable guides to an improvement in conditions.
However, there had been a substantial public debate and it was continuing. The investigations, assessments and debates in progress were such that the applicant had not established that the Secretary of State was in breach of Article 2 by failing to convene a public inquiry:
“I am far from persuaded that setting up a public inquiry is the only way in which the obligation under Article 2 can be discharged in this case. It is not a case in which the respondent, either expressly or by inaction, has failed to confront the issues which have emerged or failed to give serious consideration to possible improvements. The combination of the Inquest and the measures taken, including the input into the deliberations of the SGC, have achieved compliance with the Article 2 obligation.
Questions of sentencing policy and of the allocation of resources are essentially for collegiate consideration and decisions by the Government, following procedures which are well established, including those by which guidance is given to judges. I cannot hold that the only appropriate action is for a judge, however eminent, to be given the task of resolving such issues, at or following a public inquiry.”
As to the participation of the family of JS in the investigation, Lord Justice Pill noted that the family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of State. They had also been invited to make representations to the SGC.
“The bereaved family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of State. They have been invited to make representations to the SGC. It is recognised that they can make an input into questions of policy and resources but, because broad issues of public concern are involved, many other factors have to be taken into account and involvement in those issues cannot be expected to be to the same degree. Participation in issues of sentencing policy and the allocation of resources are in a different category from the investigation of facts in the particular case.
He concluded:
“If I am right that the Article 2 duty may extend beyond a factual investigation into a search for improvements, issues of policy may arise. In addressing them, the appropriate extent of the family’s involvement required, however serious the impact of the events upon them, is likely to be less than with the investigation of the facts. I do not accept that concern for the family’s involvement imposes an obligation on the Secretary of State to hold a public inquiry.
Lady Justice Arden agreed with the above reasoning and added that a distinction was to be drawn between “legal and political questions”. The applicant could not, by way of individual rights under Article 2, intervene in the political process which determined the allocation of resources as this would be to carry Convention rights further than Convention jurisprudence required (citing Taylor Family and Others v. the United Kingdom, no. 23412/94, Comm. Dec. 30.8.94, D.R. 79 p. 127).
On 14 March 2007 the House of Lords dismissed the applicant’s appeal: it did not raise an arguable point of law of general public importance which ought to be considered by the House of Lords, bearing in mind that the case had already been the subject of judicial decision and reviewed on appeal.
The main custodial sentence for young offenders is a DTO, it amounts to a sentence to custody of between four months and two years and it can be awarded against those of 12-17 years of age. Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) provides:
“A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.”
Accordingly, the first half of the sentence is spent in custody whilst the second half is spent in the community under the supervision of the YOT.
Section 102(1) of the 2000 Act provides that the DTO shall be served in such secure accommodation as may be determined by the Secretary of State or by an authorised body. The YJB exercises this role.
The SGC was established in 2004 (the Criminal Justice Act 2003, the 2003 Act”) to develop, in place of the Court of Appeal, comprehensive sentencing guidelines for the courts to apply. The SGC is chaired by the Lord Chief Justice and has seven further judicial members (appointed by the Lord Chief Justice) from every tier of court that deals with sentencing in criminal cases. Four non-judicial members (experienced in policing, criminal prosecution, criminal defence and the interests of victims) are appointed by the Lord Chancellor, after consultation with the Lord Chief Justice and the Home Secretary. The SGC receives advice from the Sentencing Advisory Panel (which itself consults widely before tendering that advice). The SGC then produces a draft guideline on which it consults and the final guidelines, amended as appropriate following consultation, are published in final form approximately two months later.
The YJB is an executive non-departmental public body, created by the Crime and Disorder Act 1998. At the relevant time it was funded and overseen by the Ministry of Justice, and the relevant Secretary of State appointed its Board members (10-12).
The YJB supervises the youth justice system in England and Wales. It advises the Secretary of State on the operation of, and standards for, the youth justice system; it monitors the performance of the youth justice system; it commissions secure estate for young people (it spends around 70% of its budget on providing custodial places); it sets and promotes the best standards for these facilities; it places children and young people remanded or sentenced to custody in appropriate accommodation within the secure estate; it makes grants to local authorities and other bodies to support the development of effective practice; and it commissions research and publishes information.
The bulk of young men sentenced to DTOs are placed in YOIs managed by the prison service. YOIs hold young offenders between the ages of 15 and 21. There are some differences between YOI and adult prison regimes: the YOI has a better staff/offender ratio; at least 25 hours of education per week; and its overall objectives are helping the detainee improve behaviour, develop practical skills and prepare for employment.
STCs are purpose built centres for young offenders up to the age of 17 whose regimes are constructive and education-focused. STCs have a better staff/offender ratio and are smaller in size than YOIs, which means that individual needs are met more easily.
LASCH are designed to focus on very vulnerable children who present a range of serious physical, emotional and psychological problems. They are run by local authority social services departments, overseen by the Department of Health and the Department for Education and Skills. They have the best staff/young person ratio of all and are generally small facilities (6-40 beds). LASCH accommodate, not only juveniles on secure remand or following a DTO, but also children who are being looked after for welfare or behavioural reasons. LASCHs generally accommodate young offenders (12 to 14 years of age), girls under 16 years of age as well as boys who are 15-16 years of age assessed as vulnerable.
An Inquest must be conducted where a body lies in the district of the Coroner and there are grounds to suspect that the person died a violent or an unnatural death or a sudden death of which the cause is unknown (section 8(1) of the Coroners Act 1988). The Inquest must determine the identity of the deceased as well as how, when and where he came by his or her death (section 11(5((b) of the 1988 Act) but the Coroners Rules 1984 provide that the verdict shall not accord blame to individuals for wrong doing or otherwise ascribe specific responsibility for death (Rules 36 and 42.
Rule 43 provides that:
“A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.”
The Committee noted its extreme concern at the conditions experienced in detention and that children did not receive adequate protection or help in YOIs and it noted a very poor staff/child ratio, high levels of violence, bullying, self-harm and suicide, inadequate rehabilitation opportunities, solitary confinement in inappropriate conditions for a long time as a disciplinary measures or for protection, and the fact that girls and some boys in prison were still not separated from adults.
Following his visit to the United Kingdom in November 2004, the Commissioner reported on numerous matters including the detention of juveniles (under 18 years of age) and young offenders (18-20 years of age).
The United Kingdom had one of the highest rates of juvenile detention in Western Europe. Having been in line with the European average during the early nineties, the numbers of juvenile and young offenders increased significantly between 1995 and 1997 before stabilising. Those high rates of incarceration had inevitably impacted on the conditions of detention. Special attention to the educational and psychological needs of juveniles and young offenders was required if their detention, at such a critical time in their development, was to contribute to their rehabilitation and reinsertion and it was difficult to conclude that those imperatives were being entirely satisfied. Indeed the overall impression of the Commissioner was of a detention system that placed too much emphasis on punishment and control and not enough on rehabilitation.
As far as juveniles were concerned, the Commissioner was informed that their conditions of detention had improved in recent years with greater investment in LASCHs and STCs and in the services provided to children detained in YOI. However, he noted two serious shortcomings. He was struck on his visit to one YOI by the apparent lack of appropriate psychological care and the inadequate educational assistance provided. His discussions with other actors suggested that these problems arose, to a greater or lesser extent, throughout the juvenile and young offender detention estate.
In its response of 8 June 2005, the Government referred to a comprehensive review of each custodial establishment where young people were held, to new measures to address self-harm and suicide, to a new staff training package with an enhanced child protection module and to further funding for 25 local authority staff to undertake duties in YOIs.
The Chief Justice of the Court of Appeal expressed the following opinion in this case:
“In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court. Before coming to the facts of the individual applications, we wish to set out certain information which has been obtained by research conducted on behalf of the Home Office. It is published as Study 235, dated December 2001, entitled “Mobile Phone Theft”. The research contains certain findings as to the level of mobile phone thefts and robberies and identifies a marked increase in the incidents of such offences. ... Twelve per cent of those asked said that they had been victimised at least once. The risk of phone theft for those in the ages between 11 and 16 is five times higher than that for adults. The results show a substantial growth involving the theft of telephones. Figures from six police forces suggest that the number of recorded phone thefts has at least doubled between 1998/99 and 2000/01. There was an increase in the proportion of robberies involving telephones from about 8 per cent in 1998/99 (an estimated 5,500 phone robberies), to about 28 per cent in 2000/01 (an estimated 26,300 phone robberies). No doubt part of the increase was due to the greater phone ownership during that period. ...
Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences. Those who do so must understand that they will be punished severely. Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence.”


ITEMID: 001-82987
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF YAKOVENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections allowed (alleged ill-treatment, non-exhaustion of domestic remedies);Violation of Art. 3 (conditions of detention);Violation of Art. 3 (lack of appropriate medical assistance);Violation of Art. 3 (conditions of transportation);Violation of Art. 13;Remainder inadmissible (alleged ill-treatment);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1975 and lived in Sevastopol.
7. In June 2003 the applicant, who at that time was on probation after receiving a sentence for burglary, was arrested and placed in police custody (затриманий) on suspicion of another count of burglary. The date of his arrest is in dispute between the parties. The applicant contended that this occurred on 17 June 2003, whereas according to the Government he was apprehended on 18 June 2003.
8. On 18 June 2003 the applicant was questioned by the police, in the course of which he admitted that he had participated in the burglary of a house belonging to the sister of his alleged accomplice, Mr Zh.
On 20 June 2003 the Balaklavsky District Court of Sevastopol (Балаклавський районний суд м. Севастополя, hereafter “the District Court”) extended the term of the applicant's police custody up to a maximum of ten days.
9. On 27 June 2003 the District Court ordered the applicant to be placed in pre-trial detention on the grounds that the offence he was suspected of had been committed while he was on probation in connection with a prior suspended sentence and that if at large the applicant would abscond and thereby obstruct justice.
10. On an unspecified date in August-September 2003, the applicant was committed for trial before the District Court. In the trial proceedings, he was represented by his mother Ms S., and he retracted the confession statements he had given during his detention in police custody, claiming that these had been given under duress.
11. During a hearing on 11 September 2003 the applicant informed the trial court that he felt unwell and thus could not participate in the hearing. The presiding judge called an ambulance to assess the applicant's medical condition.
12. On 29 April 2004 the District Court found the applicant guilty as charged. It rejected the applicant's argument that his confession statements had been given under duress and found that a certificate issued by the Sevastopol City Hospital, according to which the applicant had been treated in that hospital on 21 June 2003 for bruises on his legs, could not be regarded as conclusive evidence of police brutality, as the applicant himself had failed to give any explanation before the court as to how he had come by those injuries.
13. On 22 March 2005, following an appeal by the applicant, the Sevastopol City Court of Appeal (Апеляційний суд м. Севастополя, hereafter “the Court of Appeal”) quashed the judgment of 29 April 2004 and remitted the case for a fresh examination. The court indicated, inter alia, that the first-instance court had addressed the issue of the applicant's alleged ill-treatment in police custody, although he had never complained before the court that he had suffered any ill-treatment by the police. Without giving any reasons, the Court of Appeal also ordered that the applicant should remain in detention.
14. On 23 November 2005 the District Court convicted the applicant of burglary and sentenced him to three years and seven months' imprisonment. It based this conviction on the confession statements given by the applicant and Mr Zh. during the pre-trial stage of the proceedings, the victim's oral evidence in court, and statements given by two other witnesses in the course of the pretrial investigation. It rejected as unfounded the applicant's allegation that he had been ill-treated by the police.
15. The applicant appealed against the judgment of 23 November 2005, asking for a reduction of his sentence. On 17 October 2006 the Court of Appeal granted the applicant's appeal and reduced his sentence to three years, six months and one day's imprisonment. The applicant did not appeal in cassation.
16. According to the applicant, after his arrest on 17 June 2003 he was taken to the Balaklavsky District Police Department of Sevastopol (Балаклавський РВВС м. Севастополя, hereafter “the Police Department”). There he was allegedly subjected to ill-treatment by the police officers, who coerced him into confessing to burglary, with which he was subsequently charged.
17. On 21 June 2003 the applicant was taken to the Sevastopol City Hospital No. 1 (Севастопольська міська лікарня № 1). According to the certificate issued by this hospital on 15 December 2003 the applicant had bruises on his left thigh and buttocks.
18. After having received the required assistance in the Sevastopol City Hospital No. 1, the applicant was taken to the Sevastopol City Temporary Detention Centre (Севастопольський міський ізолятор тимчасового тримання, hereafter “the Sevastopol ITT”).
19. According to the entry in the Sevastopol ITT register the applicant did not have any visible injuries on his admission and did not complain of any illtreatment.
20. During the trial proceedings before the District Court in MarchNovember 2005, the trial court ordered the Balaklavsky District Prosecutor's Office of Sevastopol (Прокурора Балаклавського району м. Севастополя, hereafter “the Prosecutor's Office”) to carry out criminal inquires into the applicant's allegations of ill-treatment. On an unspecified date before November 2005 the Prosecutor's Office decided that there was no prima facie case of ill-treatment and refused to institute criminal proceedings in respect of the applicant's complaints.
21. As indicated above (see paragraph 18), on 21 June 2003, the applicant was transferred from the Police Department to the Sevastopol ITT. On 16 July 2003 he was admitted to the Simferopol Pre-Trial Detention Centre no. 15 (Сімферопольський слідчий ізолятор № 15, hereafter “the Simferopol SIZO”). However, since the police, prosecution and judicial authorities involved in his criminal case were based in Sevastopol the applicant was transferred each month from the Simferopol SIZO to the Sevastopol ITT, where he stayed for ten days. From 8 to 28 April 2006 the applicant remained in the Sevastopol ITT as, according to a letter of 4 March 2006 from the Deputy Head of the Sevastopol City Police Department (Управління МВС України в м. Севастополі), the Simferopol SIZO refused to admit inmates of the Sevastopol ITT who were suffering from tuberculosis.
22. On 28 April 2006 the applicant was admitted to the Sevastopol City Infectious Diseases Hospital (Севастопольська міська інфекційна лікарня, hereafter “the Infectious Diseases Hospital”).
23. Therefore, between 21 June 2003 and 28 April 2006 the applicant spent a total of around a year in the Sevastopol ITT.
24. According to the applicant, during his stay in the Sevastopol ITT he was held in small cells which were constantly overcrowded. In support of this claim, the applicant relied on a letter from the head of the Sevastopol City Police Department, issued on 10 May 2005 and addressed to a third person. In that letter it was stated that some 240 inmates were being held in the Sevastopol ITT instead of its capacity of 82.
25. The applicant stated that he had been held in cell no. 9 for most of the time and for short periods in cells nos. 4 and 5.
26. Cell no. 9 measured about 15 square metres and had been occupied by 25 inmates. There were three double bunks for three inmates. Cells nos. 4 and 5, both of around 22 square metres, the applicant shared with 30 fellow inmates. They were equipped with one double bunk and wooden planking on the floor, which was also used by the inmates for sleeping.
27. Owing to the lack of bunks, the inmates had to take turns to sleep. The cells were situated in the basement and were thus deprived of daylight. They were dimly lit by electric lamps fixed into the ceiling, which were never switched off, contributing further to the lack of sleep. Moreover, the air in these overcrowded basement cells could be supplied only though the ventilation system, which was often out of order.
28. The applicant's cell was infested with cockroaches and ants, and no attempt was made to exterminate them. The inmates in the Sevastopol ITT cells were furthermore exposed to infectious diseases like tuberculosis, which the applicant contracted whilst being detained there.
29. The applicant further claimed that the food supplied in the Sevastopol ITT was meagre and of poor quality and was supplemented with food sent by his mother.
30. The Government submitted that whilst in the Sevastopol ITT the applicant shared cells measuring 16 square metres with 4-6 other detainees. The Government maintained that the cells were equipped with wooden planking, ventilation, water supply and sewerage systems. The applicant was provided with hot meals three times a day and the opportunity to wash at least once a week. There were windows, which allowed daylight and fresh air in. In general, the conditions of the applicant's detention corresponded to the relevant hygiene and sanitation standards.
31. As indicated above, the applicant was transported to and from the Sevastopol ITT each month.
32. The distance between Sevastopol and Simferopol is about 80 kilometres. The transportation (етап) started at 8 a.m. and, according to the Government, ended at 4 p.m. on the same day. The applicant submitted that it usually took 36-48 hours for him to reach the destination. The applicant was informed beforehand about the journey, and, according to the Government, fed before it started. The applicant submitted that not once was he provided with breakfast before the transportation.
33. The applicant and the other inmates were transported in police vans to and from the railway stations. These journeys usually lasted 30 minutes. The Government indicated that the vans' design capacity of 20-21 persons was never exceeded. The applicant argued that normally the vans carried as many as 30 persons in a stuffy and dimly lit compartment of 6 square metres.
34. When in a train the applicant was held in carriages of special design with a capacity of 104 persons. According to the Government, the number of persons in a carriage never exceeded 70. The applicant alleged that it was always more than 100. According to the applicant's account, during this part of the journey he was not provided with food or water.
35. The applicant's health started to deteriorate in mid-2005. However, as confirmed in the above-mentioned letter of 10 May 2005 by the Head of the Sevastopol City Police Department, the Sevastopol ITT staff did not include a doctor and the “acting paramedic” (виконуючий обов'язки фельдшера) was not medically trained or qualified. As a result, the applicant received no medical assistance from the Sevastopol ITT.
36. According to a letter of 25 April 2006 by the Governor of the Simferopol SIZO, the applicant had undergone treatment for bronchitis in the medical unit of the Simferopol SIZO between 14 and 27 February 2006. Two Xray examinations carried out on 1 and 10 February 2006 did not reveal any pathological changes in his heart or lungs. This letter further stated that on 14 February 2006 the applicant's blood was tested for HIV antibodies. On 21 February 2006 the Crimean anti-Aids Healthcare Centre diagnosed the applicant as HIV positive. The applicant alleged that neither he nor his mother had been informed of this diagnosis.
37. On 8 April 2006, while he was in the Sevastopol ITT, an ambulance was called for the applicant. The doctor found the applicant to be suffering from “fever of unknown origin” and administered him a dose of a painkiller, which had a short-term effect. According to the applicant the ambulance doctor stated that the applicant required an examination in a specialist hospital.
38. On 12 April 2006 the applicant complained about further deterioration of his health. An ambulance was called, whose doctor found the applicant to be suffering from an “acute respiratory virus infection”.
39. On 14 April 2006 the applicant was taken to the Infectious Diseases Hospital. According to the applicant, during this examination he was diagnosed as suffering from tuberculosis of the lymph nodes and hospitalisation was recommended, which was refused by the administration of the Sevastopol ITT, because it could not afford to detach four officers to guard him in a hospital. The Government stated that the doctors did not find it necessary to hospitalise the applicant, but that they took samples of his blood for HIV testing and prescribed him vitamins.
40. On 20 April 2006 the applicant was taken to the Infectious Diseases Hospital for further examinations. He was diagnosed as suffering from tuberculosis and prescribed anti-tuberculosis treatment. The Government submitted that on that occasion the doctors did not recommend his hospitalisation either. The Government further stated that during this examination it was established for the first time that the applicant was HIV positive. The applicant alleged that it was the first time he had been informed about this condition; whereas the prison authorities had been aware of it long before this date.
41. In a letter of 21 April 2006 the head doctor the Infectious Diseases Hospital informed the applicant's mother that a commission of doctors from this hospital diagnosed the applicant as being HIV positive and suffering from tuberculosis and recommended his urgent hospitalisation.
42. On that same date the applicant's mother lodged a complaint with the Prosecutor-General, stating that the administration of the Sevastopol ITT had unlawfully refused to hospitalise her son, whose health condition was extremely grave. She stated in particular that since the beginning of April 2006 the applicant's body temperature had remained at around 40 C0, and that he could hardly eat or move without help. The outcome of this complaint is unknown.
43. On 28 April 2006, pursuant to the Court's request made under Rule 39 of the Rules of Court, the applicant was transferred to the Sevastopol AntiTuberculosis Healthcare Centre (Севастопольський протитуберкульозний диспансер).
44. According to a letter from the head doctor of the Infectious Diseases Hospital dated 28 August 2006 the applicant was registered at the Sevastopol Anti-Aids Centre as an HIV patient in May 2006 and received the appropriate treatment.
45. The relevant provisions of the Constitution of Ukraine and the PreTrial Detention Act can be found in the judgment of 12 October 2006 in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 28-31, 33-35 and 37).
46. Article 236-1 of the Code provides:
“Within seven days of notification, a decision of the body of inquiry, investigator or a prosecutor not to institute criminal proceedings can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...”
47. Article 236-2 of the Code, in so far as relevant, provides:
“An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged.
The judge shall request the materials, on the basis of which the decision not to institute criminal proceedings was made, examines them, and informs the prosecutor and the appellant of the date on which the hearing of the appeal is listed.
Having examined the case, the judge ... may take one of the following decisions:
1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries...
2) to dismiss the complaint ...”
48. Section 17 of the Act provides that persons suffering from tuberculosis detained in pre-trial detention centres (SIZOs) receive appropriate treatment in the medical units of these detention centres. Prisoners detained in penitentiary establishments should be treated in specialist prison hospitals.
49. Paragraph 2.1 of the Decree provides that persons detained with HIV/Aids should be provided with obligatory outpatient monitoring, treatment for opportunistic infections (infections that can affect people with a weak immune system) and antiretroviral treatment.
50. In accordance with paragraphs 3.1 and 3.2.1 of this Decree, antiretroviral treatment should be prescribed by the prison infectious disease doctors who have undergone the relevant training or by doctors from local anti-Aids establishments. The antiretroviral monitoring of the persons detained in pre-trial detention centres is being carried out by the local anti-Aids establishments.
51. Paragraph 3.5 of the Decree provides that immediately upon the admission of a person with HIV/Aids to a pre-trial detention centre, the head of the medical unit of that facility should provide him or her with antiretroviral drugs from the local antiAids establishment.
52. In accordance with paragraph 3.6 of the Decree, when a person with HIV/Aids is being transferred from one penitentiary establishment to another it should be ensured that the relevant medical documents accompany him or her to the new establishment.
53. This Report states the following:
“It should be acknowledged that the police authorities do not follow the demands of [the CPT] expressed during their visit in October last year in respect of immediate cessation of the unlawful and long-term holding of arrested and detained persons in police custody ...
In the majority of the ITTs the rights of the detainees are not respected. ... The requirements of the Combating Tuberculosis Act in respect of the obligation of the authorities to provide detainees suffering from tuberculosis with treatment in specialist medical establishments are not being met. Many people suffering from this disease are being held in ITTs for long periods without any medical assistance. In total, of 2,434 persons suffering from tuberculosis held in the ITT only 719 were treated in the specialist establishments of the Ministry of Health. This not only violates the rights of the detainees, but also contributes to the further dissemination of this disease.
The conditions under which arrested and detained persons in the ITTs of the Autonomous Republic of Crimea are held... may be equated to inhuman or degrading treatment. Detainees are being held in basements or in premises where there are not even the most basic conditions for long-term occupation.
Police officers systematically infringe the law in respect of the maximum ten-day detention of arrested, detained and convicted persons in ITTs. In the Sevastopol ITT, in breach of the law, there were 85 persons who had been held more than ten days, 28 who had been held for more than three months, eleven for more than six months and five for more than a year, including seventeen convicted persons.
54. The relevant extract from the report reads as follows:
Under Section 4 of the Pre-trial Detention Act and Article 155 of the Code of Criminal Procedure, persons remanded in custody should be held in the centres for pre-trial detention [SIZOs]. Only in exceptional cases should these persons be held in establishments such as the Ministry of the Interior's Temporary Detention Centres. It is also to be noted that the law clearly defines the time-limits for holding persons in the ITTs, that is three days, and in cases where the ITT is situated far from the relevant SIZO or there are no suitable roads available, ten days. In breach of the above laws, the governors of many SIZOs unreasonably refuse to admit detainees transferred from the ITTs. This attitude on the part of governors of SIZOs has led to inhuman, dreadful and unbearable conditions of detention in the ITTs and their overcrowding (almost twice their capacity) in the Autonomous Republic of Crimea, ... and the cities of ... Sevastopol. In particular, in the Autonomous Republic of Crimea an inmate is admitted to the Simferopol SIZO only in exchange for one inmate being transferred to the ITT.
55. The relevant extracts from section XV of the report “The observance of prisoners' rights in Ukraine” read as follows:
“...The Ministry of Internal Affairs is in charge of 501 temporary holding facilities (ITT – izolyator tymchasovoho trymannya), where they may be held for a maximum of 3 days (10 days in exceptional circumstances) before being moved to a pre-trial detention centre (SIZO – an acronym for slidchy izolyator). However there are instances when this time period is exceeded. Each day in Ukraine around 7,000 people who have been detained are held in ITT, with a capacity for 10,400 places. According to information from the Ministry of Internal Affairs, 127 ITT are in need of repair.
The greatest number of cases involving ill-treatment while in custody occur specifically during the time that individuals detained are held in police institutions. The conditions in such institutions are, furthermore, excessively harsh. This is connected to a large degree with poor financing, however, funding has recently been allocated to provide for detainees held in ITT. “Donetsk Memorial” sent formal requests for information to ten regional departments of the Ministry of Internal Affairs (MIA) with questions about the conditions in which prisoners were held in ITT. Information from the responses received is presented in Table 1: “Conditions in which prisoners are held in temporary holding facilities”.
According to figures from the departments, in 2004-2005 from 16 to 70 UH was allocated for each individual while being held in an ITT...
...One of the problems with police custody is the fact that detained individuals suffering from tuberculosis cannot be sent to SIZO. As noted in the Council of Europe (Monitoring Committee Report, on the basis of a number of normative legal acts of the State Department for the Execution of Sentences, individuals suffering from infectious diseases (including tuberculosis) cannot be transferred to pre-trial detention centres (SIZO) from the temporary holding facilities (ITT) under the competence of the Ministry of Internal Affairs. According to some reports, 739 arrested people were not admitted to SIZO during 2004. TB-infected people were thus held in detention in the ITT, which are not fit for holding such persons, beyond the legally established maximum term of arrest (3 or 10 days). This not only violates the rights of the arrested but also promotes the spread of diseases in the ITT. According to the Ministry of Internal Affairs, more than 1,000 people are held daily in ITT after the maximum time-limit established by law, including 100 people ill with TB. The situation has not improved even after an Instruction (No. 419-p of 5 July 2004) was issued by the Cabinet of Ministers whereby the State Department for the Execution of Sentences was ordered to ensure admission of those arrested who are ill with TB. According to the comments of the Ukrainian authorities, there are plans to solve this problem by delegating the treatment of persons in detention on remand to special establishments of the Ministry of Health which will be guarded by Ministry of Internal Affairs units. This requires changes to the relevant legislation...
...One of the activities of the Human Rights Ombudsperson is the overseeing the conditions in which individuals detained by the police are being held.
A check made by the Human Rights Ombudsperson in June 2005 of a temporary holding facility (ITT) in the city of Feodosia found that the cells were still without windows. Many ITT have semi-basement dark concrete cells, without fresh air, drinking water, or plumbing, posing a risk to people's health and reminiscent of the middle ages. They furthermore constantly hold one and a half or even twice as many people as they have capacity for, and it is possible to breathe there only through forced ventilation.
The Human Rights Ombudsperson found that the rights of citizens regarding three-hour detention in holding rooms were infringed, and that in half of the 808 district police departments people detained were not given anything to eat, despite several submissions from the Human Rights Ombudsperson, on the basis of which State Deputies and the Government allocated funding. Such conditions are also a form of torture, yet due to the continuing large numbers of detentions and arrests, people are placed in the rooms set aside for those detained. Each year more than a million people pass through these ITT...”
III. RELEVANT INTERNATIONAL REPORTS
56. The visit of the CPT delegation to Ukraine took place from 10 to 26 September 2000, in the course of which the delegation inspected six centres for temporary detention (police-run detention facilities designated for a short stay of detained suspects), including the Sevastopol ITT.
57. The relevant parts of the CPT report read as follows:
“50. The majority of ITTs visited were overcrowded. For example, in Sebastopol ITT, up to 10 persons were being held in cells of 15 m² and in several cells there were more persons than beds.
51. In all the ITTs visited, access to natural light was obstructed by dense metal netting on the windows or jalousies and the artificial lighting was, in general, insufficient. Reading of any kind was a strain on the eyes. The ventilation was inadequate and the air in the cells visited heavy. The lack of ventilation was exacerbated by the fact that the cells tended to be fetid, detainees being provided with neither products for cleaning their cells nor the possibility of washing themselves other than in a basin of cold water..... Further, the sanitary facilities in nearly all the ITTs visited left something to be desired. A notable exception was Simferopol ITT, where the delegation noted the cells were clean and the detainees possessed basic hygiene products.
In several ITTs there was an insufficient quantity of mattresses and blankets for all the detainees, while the cleanliness of those available was questionable. Further, with one or two exceptions, the ITTs visited did not possess outdoor exercise facilities. Nor was there any provision for activities; in many ITTs, detainees were not even permitted newspapers.
52. In most ITTs, the single daily meal was supplemented by food parcels from relatives. Those without relatives shared the food of others. Given the fact that the Militia are unable financially to provide sufficient food to detainees, food parcels should not be subject to undue restrictions.
53. In the light of the unacceptable conditions referred to above, the CPT was all the more concerned to learn that a significant number of detainees were being held in ITTs for periods much longer than the 10 day legal limit.
...
55. Health-care issues have been a matter of concern to the CPT since its first visit; no improvements were observed during the 2000 visit. To begin with, the CPT's delegation noted that in several ITTs (Bakchisaray, Lytne) there was no feldsher at all to maintain the health-care service. Further, the CPT must insist on the importance of all detainees receiving a thorough medical examination upon being admitted to an ITT; this is still not the norm at present. Further, the feldsher should take a proactive stance in dealing with health-care issues arising within an ITT; the cramped living space under which detainees are held and the lack of general hygiene constitute an environment conducive to the spread of diseases, in particular tuberculosis.”
58. In its Report to the Ukrainian Government on the visit to Ukraine carried out from 24 November to 6 December 2002 the CPT stated as follows (original emphasise):
“11. The legal framework governing deprivation of liberty by the Militia has already been described in previous CPT visit reports. The Militia, it will be recalled, can, on its own authority, hold a person suspected of a criminal offence for up to 72 hours.
However, by law of 21 July 2001, the Code of Criminal Procedure was brought into line with the Ukrainian Constitution. Now, within 72 hours of detention, the investigating bodies are required, if they wish to have a suspect remanded in custody, to bring the suspect before a judge (Articles 106 and 165-2 of the Code of Criminal Procedure). The judge can order that the suspect be remanded in custody for up to 15 days, and thereafter grant extensions for a maximum total period of 18 months.
A person remanded in custody is in principle transferred to a pre-trial prison (SIZO). The person may nevertheless be detained in an ITT for a maximum period of up to 10 days if the transfer to the SIZO cannot be effected owing to the distance or the absence of appropriate means of communication.
12. In their reply to the report on the 2001 visit (document CPT/Inf (2002) 24), the Ukrainian authorities claimed that, thanks to the intervention of judges, overcrowding in police establishments had been substantially reduced. Unfortunately, the visit carried out at the end of 2002 demonstrated the contrary. With the sole exception of the Kyiv ITT, all the other establishments of this kind were overcrowded. It emerged that, in the various regions visited, the judges favoured an approach whereby suspects were remanded in custody, as was generally requested by the investigating bodies and prosecutors.
The CPT recommends that the Ukrainian authorities raise the awareness of the investigating bodies and prosecutors/judges of the new legislation and encourage them to make extensive use of their power to apply non-custodial preventive measures to persons suspected of a criminal offence (cf. also paragraph 85 below).
13. Moreover, in 2002, in examining the relevant records, the CPT's delegation again found cases of remand prisoners being held in ITTs for considerably longer than the 10 days permitted (for example, up to 48 days at the ITT of the Ministry of Internal Affairs of the District Directorate of Khust).”
59. The relevant extracts from the Report of the CPT on a visit to Ukraine from 8 to 24 February 1998 read as follows (original emphasise):
“189. During its visit to the Kyiv SIZO of the Security Service of Ukraine, the delegation also had the opportunity to examine a prison van. This vehicle contained three compartments with benches. The artificial lighting was very poor and the ventilation was non-existent. In addition, one of the compartments was extremely small (0.50m²). According to the staff in charge of the vehicle, this type of van was used only for short journeys within the city. However, the delegation heard allegations from prisoners that vehicles of this kind were sometimes used for longer journeys.
The CPT would like to receive a copy of any regulations which might exist concerning the characteristics of vehicles used for transporting prisoners. In addition, it recommends that the Ukrainian authorities check the lighting and ventilation in prison vans, and cease placing prisoners in compartments as small as 0.50m².”
60. The 2000 Report also contains the findings of the CPT concerning the conditions in which detainees were being transferred from one place of detention to another (original emphasise):
“129. Concerning road transport of prisoners, the delegation inspected two Internal Affairs Ministry vans in Simferopol SIZO. Each vehicle had collective compartments and an individual compartment. The individual compartments were as small as 0.5 m²; in paragraph 189 of the report on its 1998 visit, the CPT has already recommended that the practice of placing prisoners in compartments of this size cease. Conditions in the vehicle were also similar in other respects to those described in the aforementioned paragraph of the report on the 1998 visit (poor artificial lighting, inadequate ventilation).
130. Concerning rail transport, the delegation examined the facilities in one of the special carriages used for transporting prisoners. It had compartments measuring 2 and 3.5 m², with folding benches. The authorised capacity in the smaller compartments was six persons for journeys lasting not more than four hours, and four persons for longer journeys. In the larger 3.5 m² compartments, up to sixteen persons could be accommodated for short distances and twelve for long distances. The compartments had some access to natural light; however, ventilation was poor. The toilets for prisoners were in a disgusting state, clogged with excrement, despite the fact that prisoners were due to board a few minutes later for a long journey.
There were no arrangements to provide prisoners with food, even over long distances; as for drinking water, only a small container was provided to supply the prisoners throughout the journey.
131. The manner in which prisoners are transported, particularly by train, is unacceptable, having regard, inter alia, to the material conditions and possible duration of travel.
The CPT recommends that conditions of prisoners' transport in Ukraine be reviewed in the light of the foregoing remarks. As an immediate measure, it recommends that the Ukrainian authorities take steps to:
- significantly reduce the maximum number of prisoners per compartment in a railway carriage: 3.5 m² compartments should never contain more than six persons, and 2 m² compartments never more than three persons;
- ensure that during rail transport, prisoners are supplied with drinking water and that for long journeys, the necessary arrangements are made for them to be properly fed;
- no longer use 0.5 m² compartments in vans for transporting prisoners.”
61. In its Report to the Ukrainian Government on the visit to Ukraine carried out from 24 November to 6 December 2002 the CPT stated as follows (original emphasise):
“142. In its report on the 2000 visit (paragraph 131), the CPT made a number of recommendations concerning the transport of prisoners by road and rail. The matter was raised again in 2002 with the Ukrainian authorities, who stated that a working group had been set up to transfer responsibility for escorting prisoners from the Ministry of Internal Affairs to the Department for the Execution of Sentences. In the light of the critical findings again made by the delegation which carried out the 2002 visit, concerning transport vans, the CPT recommends that the Ukrainian authorities give a high priority to resolving the issue of the conditions under which prisoners are transported, with due regard to the recommendations in paragraph 131 of its report on the 2000 visit.”
62. As regards the situation in the Sevastopol ITT, AI stated in a briefing on Ukraine for the United Nations Committee against Torture that took place on 30 April 2007:
“According to the World Health Organization, Ukraine has an estimated tuberculosis (TB) case rate of 95 cases per year per 100,000 people which is the eighth highest in Europe and Eurasia. In a country with a very high rate of TB, overcrowding and poor conditions in pre-trial detention have led to a high rate of infection among detainees. In January 2006 the Sevastopol Human Rights Group reported to Amnesty International that there were 3040 TB infected detainees in the Sevastopol ITT in the Crimea. These people are detained for the full period of their pre-trial detention in the ITT, in violation of the Criminal Procedural Code, because of a long-standing practice that the nearest SIZO in Simferopol will not accept detainees infected with TB. In January 2006, 20 TB infected detainees were held in a cell designed for six people. They are provided with drugs, but reportedly they do not receive special food or the vitamins needed to counteract the effects of the drugs.”
63. In a report “Europe and Central Asia. Summary of Amnesty International's Concerns in the Region. JanuaryJune 2004” AI stated the following:
“At a meeting with AI delegates in June the National Human Rights Ombudsperson Nina Karpacheva stated that torture was still widespread. The main problems were lack of immediate access to a lawyer and conditions in pre-trial detention centres (SIZO) and temporary holding facilities (ІТТ). The problem was aggravated by a very high number of arrests and a failure to use alternative methods such as bonds and bail. Nina Karpacheva also stated that conditions in the Sevastopol ITT were particularly poor and have led to a very high rate of infection with tuberculosis (TB) among the detainees. Cells are overcrowded and detainees are forced to share bunks or sleep in shifts, food is inadequate and until January 2004 when Nina Karpacheva discovered a possible site for an exercise yard, there was no possibility to take exercise.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has repeatedly expressed concern about the spread of TB in prisons and places of detention in Ukraine, and in their report on conditions in 2000 expressed concern that no improvements could be observed. Andrey Ovsiannikov was arrested in June 2003 on suspicion of drug dealing and held in the Sevastopol ITT. He was not ill with TB at the time, but by September had been diagnosed with TB. He was not informed and found out only by chance in November when his health worsened. He did not receive any treatment until March when through the efforts of his family and the Sevastopol Human Rights Group he was hospitalized and received treatment. On 30 June he was returned to the ITT. AI is concerned that he has been held since June 2003 in pre-trial detention in the ITT when domestic law stipulates that detainees may be held in such facilities for a maximum of 72 hours, and that conditions in the Sevastopol ITT constituted cruel and inhuman treatment.”
64. Relevant international reports and other materials concerning the treatment of tuberculosis in Ukrainian penitentiary establishments can be found in the judgment of 28 March 2006 in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-53).
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