ITEMID: 001-58598
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MOREL v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 concerning the right to a fair hearing;No violation of Art. 6-1 concerning the right to an impartial tribunal
JUDGES: Nicolas Bratza
TEXT: 9. The applicant formed five construction companies to build catering and accommodation facilities at the request of the Olympic Games Organisation Committee ( “the OGOC”). He was the manager of the companies. He held 99% of the shares in one of the companies, which was the sole shareholder in the other four. He also acted as guarantor of virtually all the companies' debts.
10. As the works were not completed within the agreed period, the OGOC suspended payment for them. On 24 February 1992 the applicant lodged a declaration of insolvency on behalf of the companies with the registry of the Nanterre Commercial Court.
11. On 25 February 1992 the Nanterre Commercial Court made an order for the judicial reorganisation of the applicant's five companies. It named Mr A. as the insolvency judge, and also appointed a deputy insolvency judge, a judicial administrator and a creditors' representative. It ordered a six-month observation period during which the judicial administrator was to draw up a report on the companies' finances and labour force with his recommendations as to whether the companies should continue or cease trading. The observation period was renewed twice.
12. During the observation period, the insolvency judge made various orders, namely: orders for the appointment of an expert on management supervision (11 March 1992), a valuer (6 April 1992) and an accountant (22 April 1992); orders declaring claims time-barred (two orders were made on 13 October 1992 and others on 16 November 1992, 17 February 1993, 10 and 30 March 1993, 5 May 1993, 1 June 1993 and 25 March 1994); orders for the restitution of equipment (on 8 September, 14 December 1992 and 30 March 1993); an order authorising the applicant's intervention in the management of the hotels (on 15 September 1992); an order dismissing applications for the restitution of equipment (16 November 1992); orders for an action to be brought against one of the other contracting parties and for other measures (on the same date) and for the restitution of equipment (30 March 1993); orders dismissing thirteen members of staff (7 April 1992) and a further member of staff (8 September 1992); and lastly an order for the freezing of accounts (8 September 1992).
13. On 23 September 1993 the judicial administrator asked the Commercial Court to decide whether to accept the applicant's proposals for its recovery through continued trade.
14. The applicant appeared at the hearing and gave evidence as the manager of the companies concerned. The judicial administrator and the creditors' representative also made oral submissions. The judicial administrator presented a report in which he explained to the Commercial Court the history of the dealings which had led to the applicant's filing in insolvency. He then related to the court events during the observation period. He stressed that the applicant's recovery plan had been accepted by a majority of the creditors. He raised doubts over certain issues and said that it was for the applicant to dispel those doubts by putting up financial and professional guarantees.
15. The Commercial Court decided (on application by State Counsel's Office) that before approving the applicant's proposed recovery plan, it needed to be satisfied that the companies' continued economic activity would be permanent. For that purpose, it needed financial and professional guarantees from the applicant. It therefore asked him to produce certain additional documents so that it could be sure that the guarantees existed. The applicant lodged an additional file in response to that request. In the light of the new file lodged by the applicant, the administrator filed a supplemental report.
16. On 26 October 1993 the Commercial Court terminated the observation period and put the five companies into compulsory liquidation. It held that the proposed recovery plan was not accompanied by sufficiently reliable guarantees to ensure that the companies could continue as a going concern. The judgment contained, inter alia, the following passages:
“Consequently the Court must find that the proposed plan is not accompanied by the guarantees required to ensure its future economic activity in a difficult sector.
Pursuant to the provisions of sections 1, 36 and 146 of Law no. 85-98 of 25 January 1985, it therefore orders the compulsory liquidation of the aforementioned companies in accordance with the provisions of Chapter III of that statute and holds as follows.
FOR THESE REASONS
The Court, sitting in public and as a court of first instance,
Having examined the insolvency judge's report,
Having examined the judicial administrator's report ...
Terminates the observation period ...”
17. The Commercial Court reassigned the case to the insolvency judge, decreed that the administrator's mission had been completed and appointed the creditors' representative as liquidator of the companies. The insolvency judge sat on the bench that delivered that judgment in his capacity as President of the Chamber. He was assisted by the Vice-President of the Commercial Court and another judge.
18. In a judgment of 31 January 1994, the Versailles Court of Appeal upheld the Commercial Court's judgment in its entirety. It delivered its decision after examining the applicant's recovery plan, the judicial administrator's report and the liquidator's submissions. The applicant attended the hearing and made oral observations.
On 7 April 1994 the applicant appealed to the Court of Cassation. He put forward two grounds of appeal based on Article 6 of the Convention. On 23 January 1996 the Court of Cassation dismissed the appeal. The applicant had argued that the Commercial Court had not been impartial because the insolvency judge had sat on the bench of the Commercial Court that had ordered the companies' liquidation after playing an active role in the period of observation of the companies. The Court of Cassation met the argument as follows:
“... the fact that, in accordance with Article 24 of the decree of 27 December 1985, the insolvency judge sat on the bench that made the order for compulsory liquidation is not contrary to the provisions of Article 6 § 1 of the European Convention on Human Rights; that ground of appeal is unfounded; ...”
The applicant's second ground of appeal read as follows:
“... the insolvency judge's report and accompanying documents were not communicated to the appellants. In that regard the hearing was not fair for the purposes of Article 6 § 1 of the Convention and the rights of the defence were not respected within the meaning of Article 16 of the New Code of Civil Procedure. A hearing can only be said to be fair – again for the purposes of the European Convention – if equality of arms is ensured, in other words, if each party is aware of all the matters on which the court will rely in coming to its decision. Among those matters, the insolvency judge's report plays a paramount role in helping the court to reach its decision. However, it is deemed privileged information to which the debtor is unable to have access (it is not communicated, does not appear in the official case file which may be communicated and is not read out at the hearing). Nor, consequently, may he contest it. The principle of a fair hearing is thus infringed for the purposes of the Convention and the rights of the defence under the New Code of Civil Procedure denied.
The Court of Cassation answered that argument as follows:
“... Article 111 of the decree of 27 December 1985 provides that the insolvency judge's report may be presented orally; that provision is not contrary to Article 6 of the European Convention on Human Rights. Accordingly, since the applicant has not submitted that the insolvency judge did not present his report orally, this ground of appeal cannot succeed ...”
The applicant also raised a ground of appeal based on the fact that the Court of Appeal had failed either to summons the other party to a contract to appear or to take evidence from it. The Court of Cassation dismissed that ground of appeal, holding:
“... other contracting parties are only required to be summonsed to appear before the court of appeal when assignment of the contract as part of a plan for the sale of the undertaking is envisaged. There is no provision requiring other contracting parties to be summonsed to appear when an order for compulsory liquidation is made. This ground of appeal is therefore unfounded ...”
Concurrently, on 27 February 1995 the applicant lodged an application with the President of the Commercial Court for an order for the communication of the insolvency judge's report. On 15 March 1995 the President of the Nanterre Commercial Court dismissed the application, holding:
“... the insolvency judge's report is clothed in the secrecy of the deliberations and cannot be communicated to anyone.”
Section 1 – “This Act institutes a new procedure of judicial reorganisation proceedings with the aim of preserving undertakings, maintaining their activities and employment and clearing their debts.”
Judicial reorganisation shall take place in accordance with a plan approved in a judicial decision at the end of an observation period. The plan shall provide for the continuation or the sale of the activity of the undertaking. When neither alternative appears possible, the undertaking shall be put into compulsory liquidation.”
Section 8 – “When an order for judicial reorganisation is made an observation period shall commence so that a report can be prepared on the company's finances and labour force and proposals made for the continuation or sale of the undertaking. If neither alternative appears possible, the court shall make an order for compulsory liquidation.”
Section 10 – “In the insolvency order the court shall designate the insolvency judge [from a list compiled by the president of judges with at least two years' experience] and two court officers, namely the administrator and the creditors' representative. It shall invite the works council or, if none, the staff delegates or, if none, the members of staff to appoint a staff representative from the undertaking ...”
Section 14 – “The insolvency judge shall be responsible for ensuring that the case proceeds expeditiously and that all relevant interests are protected.”
Section 20 – “The administrator shall receive from the insolvency judge all information and documents that are relevant to the performance of his or her and the experts' duties.”
Section 13 – “The administrator and the creditors' representative shall keep the insolvency judge and State Counsel's Office informed of the progress of proceedings. The insolvency judge and State Counsel's Office may at any time require communication of any pleading or document related to the procedure.
Notwithstanding any statutory provision to the contrary, State Counsel's Office shall communicate to the insolvency judge at the latter's request or on its own initiative all information he holds that may be of relevance to the proceedings.”
Section 19 – “Notwithstanding any statutory or regulatory provision to the contrary, the insolvency judge may procure communication to him by the auditors, staff members and representatives, public authorities and bodies, pension and social-security funds, lending institutions and the departments responsible for centralising banking risks and defaults in payment information apt to give him precise details of the undertaking's economic and financial circumstances.”
Section 29 – “During the observation period the insolvency judge may order that letters addressed to the debtor shall be remitted to the administrator ...”
Article 25 of the decree – “The insolvency judge shall make an order when deciding applications, challenges and claims within his jurisdiction or grievances concerning acts of the administrator, the creditors' representative, the commissioner responsible for the execution of the plan, the liquidator or the staff representative.
Should the insolvency judge fail to make an order within a reasonable time, the court may hear the case on its own initiative or at the request of a party.
Orders of the insolvency judge shall be lodged with the registry forthwith and communicated to the court officers. An appeal shall lie against them [to the court].
The court may on its own initiative quash or vary an order within the same period.”
Section 27 – “The insolvency judge may order an inventory of the assets of the undertaking and the affixation of seals.”
Article 28 of the decree – “The insolvency judge shall give authority to the administrator or the debtor to pay over to the creditors' representative the sums which the latter requires to discharge his obligations.”
Section 30 – “The insolvency judge shall fix the remuneration for the duties performed by the head of the undertaking or the company management ...”
Section 33 – “The judgment setting the proceedings in motion shall automatically entail a ban on the payment of any debts that arose before the insolvency judgment.
The insolvency judge may authorise the head of the undertaking or the administrator to dispose of property other than in the ordinary course of the business of the undertaking, to grant a mortgage or a pledge, or to compromise or settle.
The insolvency judge may also authorise such persons to pay debts that arose before the judgment or to release a lien or property that is the subject of a valid retention of title clause provided such release is justified in that it permits the company to continue to trade.
Any document entered into or payment made in breach of the provisions of this section shall be set aside on application by any interested party lodged within three years from the execution of the document or payment of the debt. For registrable documents, time shall start to run from the date of registration.”
Section 34 – “In the absence of agreement, the insolvency judge shall decide by order whether proposals by the debtor or administrator to the creditors for substituting security with equivalent security shall be implemented.”
Section 39 in fine – “The insolvency judge may authorise the debtor or, as the case may be, the administrator, to sell movable assets in rented property that is liable to deteriorate rapidly or depreciate imminently, whose upkeep would be costly or realisation will not jeopardise the existence of the business or the preservation of sufficient security for the landlord.”
Section 45 – “Where during the period of observation redundancies are urgent, inevitable and essential, the insolvency judge may authorise the administrator to effect the dismissals ...”
Section 53 – “Creditors failing to lodge a proof within the periods laid down by decree of the Conseil d'Etat shall not be entitled to any share or dividend unless the insolvency judge grants them an extension of time after they have satisfied him that they were not responsible for the failure ...”
Section 101 – “In the light of proposals by the creditors' representative, the insolvency judge shall decide to accept or reject proofs or shall note that proceedings are under way or that the dispute is not within his jurisdiction ...”
Section 156 – “The insolvency judge shall order the sale by auction or by private agreement of the remaining property belonging to the undertaking ...”
Section 173 – “No application to set aside, whether by the other party to a contract or a third party, and no ordinary appeal or appeal on points of law shall lie against:
...
2. Judgments delivered by the Commercial Court on appeal against an order of the insolvency judge ...”
Section 12 – “The court may, on its own initiative, on a proposal by the insolvency judge or at the request of State Counsel's Office, replace the administrator, an expert or the creditors' representative ...”
Section 15 – “Either one or two supervisors chosen from among the creditors may be appointed by order of the insolvency judge ...”
Section 61 – “After hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or duly summonsing them to appear, the court shall deliver its judgment in the light of the administrator's plan and shall order either reorganisation or liquidation ...”
Section 36 is contained in the part of the Act relating to the pursuit of the undertaking's activity. The Act provides that the activity of the undertaking shall continue during the observation period subject to the provisions of Section 36, which reads as follows:
“At any stage, the court may, at the request of the administrator, the creditor's representative, the debtor, State Counsel's Office or on its own initiative and in the light of the insolvency judge's report, order the cessation of all or part of the activity or compulsory liquidation.”
The court shall deliver its judgment in private after hearing the debtor, the administrator, the creditors' representative and the representatives of the works council or, if none, the staff delegates or after duly summonsing them to appear.”
The Court of Appeal said:
“The insolvency judge has the role of supervising the administration and compulsory liquidation while also exercising an investigative role; his presence in the trial Chamber is an exception to the principle that the investigation and trial stages should be kept separate.”
The facts, however, were concerned with another aspect of the procedure, namely the making of a personal bankruptcy order against the manager of a company that had been put into liquidation. The same judge had sat as president and insolvency judge in two sets of proceedings in which first the company's judicial reorganisation and then its compulsory liquidation had been ordered. He had subsequently served a summons on the manager of the company to appear before the commercial court (the summons contained a recommendation that the manager should be declared personally bankrupt) and presided over that court, which made an order declaring the manager personally bankrupt. The Court of Appeal quashed the judgment of the commercial court on the ground that there had been a violation of Article 6 § 1 of the Convention. It found that the fact that the insolvency judge had sat on the bench that heard the case was inconsistent with the principle that the investigation and trial stages should be kept separate and could legitimise the appellant's concerns regarding the objective impartiality of the court that had delivered the impugned decision (Recueil Dalloz 1998, jurisprudence, pp. 128 et seq.). The Court of Appeal relied essentially on the role of appearances and expressly followed the judgments in Delcourt v. Belgium of 17 January 1970, Series A no. 11, p. 17, § 31, and De Cubber v. Belgium of 26 October 1984, Series A no. 86, p. 14, § 26.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76999
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF WAINWRIGHT v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial awards;Costs and expenses partial award - convention proceedings
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Matti Pellonpää;Nicolas Bratza;Rait Maruste
TEXT: 7. The first applicant, Mrs Mary Wainwright, is a United Kingdom national, who was born in 1953 and lives in Leeds. The second applicant, her son Mr Alan Wainwright, is a United Kingdom national, who was born in 1975 and lives in Leeds. He has cerebral palsy and severe arrested social and intellectual development. He was defined as a “patient” within the meaning of the Mental Health Act 1983 and as such lacked the capacity to bring or defend legal proceedings. His application to the Court was made through the first applicant, who acted as his “litigation friend” throughout the domestic proceedings.
8. In August 1996, Patrick O’Neill (the first applicant’s son and the second applicant’s half-brother) was arrested on suspicion of murder and detained on remand at HMP Armley, Leeds. Following a report by a senior prison officer raising suspicions that Mr O’Neill was involved in the supply and use of drugs within the prison, on 23 December 1996 the governor ordered, inter alia, that all Mr O’Neill’s visitors be strip-searched before visits.
9. Unaware of the governor’s orders, on 2 January 1997 the applicants attended Armley Prison to visit Mr O’Neill. Until then, neither of them had previously been to a prison. On presentation of their visiting orders, the applicants were requested to join the queue of visitors lined up by a security barrier. As requested, they removed their coats and placed them with their bags on a conveyor belt to be X-rayed. They were then frisked and searched by metal detector. Whilst waiting with other visitors in a corridor to go inside, a number of prison officers approached them and told the applicants to follow them. They were taken across the courtyard from the south gatehouse by four or five prison officers. The second applicant asked his mother what was happening. As they approached the north gatehouse, one of the officers stated that they had reason to believe that the applicants were carrying contraband. When the first applicant asked what this meant, she was told that he was referring to drugs.
10. At the north gatehouse, the applicants were taken through another security barrier and up some stairs to the first floor. They were informed that they would be strip-searched and that if they refused they would be denied their visit to Mr O’Neill. The second applicant was beginning to be distressed and the first applicant tried to calm him down. They were then taken to separate rooms for the searches.
11. The first applicant was taken by two female officers into a small room which had windows overlooking the road in front of the prison and the administration block beyond it. It was dark outside and the lights in the room were on. There were lights on in the building, which led the first applicant to believe that people were still working in the administration block. Although there were roller blinds on the windows, they were not pulled down. The first applicant was told to take off her jumper and vest. One of the officers searched them whilst the other officer walked around her, examining her naked upper body. She was then instructed to remove her shoes, socks and trousers, which she did. At this point, a third female officer entered the room. This officer asked where the consent forms were, and was told by one of the officers where to find them. In answer to a question from the first applicant, the third officer confirmed that the form was for the second applicant. The first applicant explained that it would be no use to him because of his learning difficulties, particularly with reading and understanding, and that someone else needed to be there to explain to him what was happening. The third officer then left and the search of the first applicant continued. By this time she was crying. She was standing naked apart from her underwear. On her request, she was returned her vest and allowed to put it back on. She was told to pull down her underwear which she did and then told to spread her legs. She was then told to take one leg out of her underwear so her legs could be spread wider. She was told to bend forward and her sexual organs and anus were visually examined. The officer inspecting her body then asked the first applicant to pull her vest up again, asking for it to be raised higher and higher until it was above her breasts. The first applicant asked why that was necessary since they had already inspected her top half. The officer ignored her and continued walking around her body. She was then told to put her clothes back on.
12. By the end of the search, the first applicant was shaking and visibly distressed. She believed that anyone outside the prison looking at the windows in the room where she was being strip-searched could have seen her in a state of undress. She was worried that if she protested too much she would not be allowed in to visit Mr O’Neill. She was also worried about what was happening to the second applicant. Although none of the officers touched her, she felt threatened by their actions and considered that she had no alternative but to comply with their instructions.
13. After she had been told to put her clothes back on, one of the officers approached the first applicant and asked her to sign the form to consent to a strip-search (F2141). Attached to the consent form is a summary of the procedure to be carried out. The first applicant told the officers that she might as well sign it as there was by that stage nothing else the officers could do to her and she then did so without reading it.
14. The second applicant was taken to a separate room by two male officers. At first he refused to go into the room but was told that he would not get to see his brother if he did not agree. Once in the room, one of the officers put on a pair of rubber gloves. This frightened the second applicant who feared that there would be a search of his rectum. As requested, he removed the clothes from the upper half of his body and they were searched. He was subjected to a finger search, which included poking a finger into his armpits. The prison officers then told the second applicant to remove the clothes from the lower half of his body. At first he refused to remove his boxer shorts. He was by this stage crying and shaking. He reluctantly removed his boxer shorts and was told to spread his legs. Because of his physical disability, he had to balance with one hand on the wall to do so. One of the prison officers looked all around his naked body, lifted up his penis and pulled back the foreskin. He was then allowed to get dressed.
15. After this, one prison officer left the room and returned with a consent form. When presented with it, the second applicant explained that he could not read and that he wanted his mother to read it to him. The officers ignored this request and said that if he did not sign the form he would not be allowed in to visit his brother. He signed the form.
16. The applicants were led back to the prison to proceed with their visit. During the visit, the first applicant told Mr O’Neill what had happened. The first applicant went into the toilet where she cried and vomited about four times. The second applicant felt shaken and nervous and was upset. The applicants did not stay for the full length of their visit.
17. Regarding the first applicant, on returning home, she removed her clothes and bathed because she felt upset, angry and dirty. Because of her experience, she did not visit Mr O’Neill for a further four months. In October 1998, in the context of the civil proceedings, she was examined by Dr Sims, Professor of Psychiatry. At that time (approximately twenty-one months after the incident), the first applicant stated that she still thought about the strip-search about once a week, continued to get upset about it, remained angry about what had happened and had difficulty sleeping. Dr Sims considered that the severe upset that she had experienced in the prison made her existing depression (for which she was receiving medication at the time of the visit) worse, but that, apart from recurrent intrusive recollections of her time at the prison and psychological distress at anything that resembled her experience, she did not show other symptoms of post traumatic stress disorder (PTSD). He concluded that, as a result of her aversive experience in the prison, the first applicant would be more vulnerable to future traumatic events and more prone to depressive reaction.
18. As for the second applicant, on his return home from the visit, he went to his bedroom crying. For about five weeks after the incident, he would not see his girlfriend, baby son, friends or anyone else and spent large amounts of his time in his bedroom. He was also examined by Dr Sims in October 1998. At this time, he stated that he was still feeling bad about the incident, had difficulty sleeping, and had nightmares about going into the room at the prison and of being strip-searched. He thought about being in prison almost continuously and broke out in a sweat and felt frightened when he recalled the incident. During a subsequent visit, he saw some of the same officers who had strip-searched him and became very frightened. In addition, he became afraid to leave the house alone and therefore stayed at home, only going out with his mother, the first applicant. He lost interest in his previous activities, showed irritability and hypervigilance.
19. Dr Sims concluded that the second applicant was suffering from PTSD (scoring 15 on the DSM-IV (American Psychiatric Association Diagnostic and Statistical Manual) scale, where 10 would indicate presence of PTSD) and had a depressive illness. He found that both illnesses had been substantially caused by his strip-search experience. He found that the second applicant had experienced the strip-search as a threat to his physical integrity, believing that he was going to experience anal penetration, to which he had responded with fear and a feeling of hopelessness. His symptoms were severely impairing his ability for social functioning. Dr Sims concluded that even after recovery the second applicant would remain vulnerable to further symptoms with lesser provocation than previously.
20. In April 2000, the second applicant was further examined by Dr Sims. He concluded that he was still suffering from post traumatic stress disorder (which in fact was more severe, measuring 18 on the DSM scale) and depressive illness. He predicted some improvement, with appropriate treatment, within one to two years.
21. On 23 April 2001 the County Court upheld the applicants’ civil claims against the Home Office, holding that the searches constituted a trespass to the person which could not be justified by Rule 86 § 1 of the Prison Rules (see Relevant domestic law and practice below) for two reasons. Firstly, the trial judge held that the strip-searches were an invasion of their privacy exceeding what was necessary and proportionate to deal with the drug smuggling problem. Although he accepted that there were serious drug problems at the prison at the time of their visit and that there were reasonable grounds for believing that Patrick O’Neill had been obtaining illicit drugs (he referred to the report by a senior prison officer that his speech had been slurred and mannerisms incoherent), he held that the prison officers should not have searched the applicants as it would have been sufficient to have searched Mr O’Neill after they left. Secondly, the prison authorities had not adhered to their own rules. The judge rejected the applicants’ submission that Article 3 was relevant, holding that although strip-searches were unpleasant they did not amount to inhuman or degrading treatment. The trial judge accepted the diagnosis of the second applicant as suffering from PTSD, but did not think that his symptoms had lasted as long as the psychiatrist thought, and that the second applicant had substantially recovered from the effects of the strip-search by March 1998, when he made a parasuicide attempt. He awarded the first applicant a total of 2,600 pounds sterling (GBP) (comprising GBP 1,600 basic damages and GBP 1,000 aggravated damages) and the second applicant a total of GBP 4,500 (comprising GBP 3,500 basic damages and GBP 1,000 aggravated damages), the Home Office having conceded battery following the trial judge’s factual findings.
22. On 20 December 2001 the Court of Appeal allowed the Home Office’s appeal. The court disagreed that trespass to the person could be extended to fit these circumstances and found that no wrongful act (save for the battery against the second applicant) had been committed. Lord Chief Justice Woolf noted that there were numerous ways in which drugs could be smuggled into prison and that the most vigorous regime of searching prisoners would not in itself suffice. He found therefore that a search of Mr O’Neill would have been inadequate. He rejected the applicants’ arguments that the Human Rights Act 1998, which did not have retrospective effect, could affect the outcome of the appeal. While agreeing that the Act had no retrospective effect, Lord Justice Buxton commented that if the events had occurred after the coming into effect of the Act, the applicants would have had a strong case for relief due to the manner of the search and the public authority’s lack of regard for Article 8. The court set aside the first-instance judgment and substituted an award of a total of GBP 3,750 to the second applicant for battery.
23. On 16 October 2003 the House of Lords upheld the judgment of the Court of Appeal and dismissed the applicants’ appeal. Holding that the Human Rights Act 1998 was not applicable as the events took place before its entry into force on 2 October 2000, the House of Lords nevertheless went on to consider whether, if the Act had been in force, breaches of the Convention could be made out. Lord Hoffmann, delivering the leading judgment, found that there was no infringement of Article 3 as the conduct had not been sufficiently humiliating to constitute degrading treatment.
“50. In the present case, the judge found that the prison officers acted in good faith and that there had been no more than ‘sloppiness’ in the failures to comply with the rules. The prison officers did not wish to humiliate the claimants; the evidence of Mrs Wainwright was that they carried out the search in a matter-of-fact way and were speaking to each other about unrelated matters. The Wainwrights were upset about having to be searched but made no complaint about the manner of the search; Mrs Wainwright did not ask for the blind to be drawn over the window or to be allowed to take off her clothes in any particular order and both of them afterwards signed the consent form without reading it but also without protest. The only inexplicable act was the search of Alan’s penis, which the prison officers were unable to explain because they could not remember having done it. But this has been fully compensated.”
24. As for Article 8:
“51. Article 8 is more difficult. Buxton LJ thought, at [2002] QB 1334, 1352, para. 62, that the Wainwrights would have had a strong case for relief under section 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although Article 8 guarantees a right of privacy, I do not think that it treats that right as having been invaded and requiring a remedy in damages, irrespective of whether the defendant acted intentionally, negligently or accidentally. It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs. Article 8 may justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage is suffered other than distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety: compare Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65.”
25. Dealing with the applicants’ submission that, in order for the United Kingdom to conform to its international obligations under the Convention, the House of Lords should find that there was (and in theory always had been) a tort of invasion of privacy under which the searches of the applicants were actionable and damages for emotional distress recoverable, Lord Hoffmann stated:
“32. Nor is there anything in the jurisprudence of the European Court of Human Rights which suggests that the adoption of some high level principle of privacy is necessary to comply with Article 8 of the Convention. The European Court is concerned only with whether English law provides an adequate remedy in a specific case in which it considers that there has been an invasion of privacy contrary to Article 8 § 1 and not justifiable under Article 8 § 2. So in Earl Spencer v United Kingdom 25 EHRR CD 105 it was satisfied that the action for breach of confidence provided an adequate remedy for the Spencers’ complaint and looked no further into the rest of the armoury of remedies available to the victims of other invasions of privacy. Likewise, in Peck v United Kingdom (2003) 36 EHRR 41 the court expressed some impatience, at paragraph 103, at being given a tour d’horizon of the remedies provided and to be provided by English law to deal with every imaginable kind of invasion of privacy. It was concerned with whether Mr Peck (who had been filmed in embarrassing circumstances by a CCTV camera) had an adequate remedy when the film was widely published by the media. It came to the conclusion that he did not.
33. Counsel for the Wainwrights relied upon Peck’s case as demonstrating the need for a general tort of invasion of privacy. But in my opinion it shows no more than the need, in English law, for a system of control of the use of film from CCTV cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens. For the reasons so cogently explained by Sir Robert Megarry in Malone v Metropolitan Police Comr [1979] Ch 344, this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.
34. Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies. Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person’s rights under Article 8 have been infringed by a public authority, he will have a statutory remedy. The creation of a general tort will, as Buxton LJ pointed out in the Court of Appeal, at [2002] QB 1334, 1360, para. 92, pre-empt the controversial question of the extent, if any, to which the Convention requires the State to provide remedies for invasions of privacy by persons who are not public authorities.
35. For these reasons I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy.”
26. Section 47(1) of the Prison Act 1952 allows the Secretary of State for the Home Department to lay down rules relating to the management of prisons.
“The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
27. Pursuant to this power, the Secretary of State has issued the Prison Rules. Rule 86 § 1 of the Prison Rules 1964 (consolidated January 1998), which was in force at the relevant time, provided:
“Any person or vehicle entering or leaving a prison may be stopped, examined and searched. ...”
28. The details of the grounds for stopping and searching visitors and the procedure to be followed were set out at the relevant time in a document entitled “Strategy and Procedures of Searching at Leeds Prison”. This document is not available to the public. The relevant paragraphs (as cited by the Court of Appeal at paragraph 18) are as follows:
“1.2.1 – Searches will be conducted in as seemly and sensitive manner as is consistent with discovering anything concealed.
No person will be strip-searched in the sight of anyone not directly involved in the search.
A person who refuses to be searched will be denied access to the prison or detained in accordance with s.1.2.7.
1.2.5 – Strip-searching of visitors is not permitted except in the circumstances specified in 1.2.7 and then only if police attendance is not possible. In cases where strip-searches of visitors are necessary it is preferable that this is done by the police.
1.2.6 – A visitor who refuses to co-operate with the search procedures will be advised that the failure to comply will result in exclusion from the prison.
1.2.7 – If the duty governor sanctions a strip-search, the visitor should be taken to a room which is completely private and informed of the general nature of the suspected article.”
29. A summary of the procedure to be followed during strip-searches at the prison was set out on the back of the consent forms. The consent form (F2141) provided as follows:
“Appendix F: Notice for the information of visitors or other persons entering an establishment
Strip-search
Please read carefully
The governor has directed that, for the reasons explained to you, you should be strip-searched.
The police have been informed but cannot come to deal with the matter. The search will therefore be carried out by prison staff.
The procedure for the search is explained overleaf.
Please sign below if the search is taking place with your consent.”
30. Above the line to be signed by the person being searched appeared the following:
“I have read this notice (or it has been read to me) and I understand it.
I agree to be strip-searched by prison staff.”
31. The summary of the procedures to be followed appeared overleaf:
“Procedures for a strip-search
Staff and visitors
Two officers will be present. No person of the opposite sex will be present.
You will not be required to be fully undressed at any stage.
You will be asked to remove clothes from half of your body and pass them to an officer so that they may be examined. Your body will then be examined briefly so that the officers can see whether anything is concealed. The clothes will then be returned to you without delay and you will be given time to put them on.
The procedure will then be repeated for the other half of your body.
The soles of your feet will be checked.
When your upper body is undressed, you may be required to hold your arms up.
When your lower body is undressed, you may be required to position yourself in such a way as to enable staff to observe whether anything is hidden in the genital or anal areas. Your body will not be touched during this process.
If you have long hair, it may be necessary for an officer to search it. It may also be necessary for an officer to check your ears and mouth. You will not be touched otherwise.”
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-114785
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KHACHATRYAN AND OTHERS v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 4. The applicants were born in 1982, 1981, 1986, 1984, 1986, 1986, 1986, 1986, 1985, 1983, 1986, 1985, 1986, 1987, 1985, 1986, 1986, 1985 and 1986 respectively and live in Yerevan, Vanadzor, the villages of Baghramyan and Zolakar, Artik, Martuni and Hrazdan, Armenia.
5. The applicants are Jehovah’s Witnesses who were eligible for call-up.
6. Following the entry into force of the Alternative Service Act on 1 July 2004, the applicants applied to the authorities asking to perform alternative labour service instead of military service. It appears that their requests were granted and the applicants were assigned to various institutions to perform the service, such as hospitals, nursing homes and dispensaries. The applicants allege that, while performing the service, they realised that the alternative labour service was not a truly civilian service.
7. In May and June 2005 the applicants wrote letters to the directors of the institutions where they were individually serving stating that, since the alternative labour service was in reality under the control of the military, they could not continue to serve in good conscience. They requested that the Alternative Service Act be modified so that they could serve in a genuine civilian alternative service. After filing these letters, all applicants left the service.
8. On 23 June 2005 criminal proceedings were instituted under Article 361 § 5 of the Criminal Code (CC) in respect of the sixth, seventh, eighth and ninth applicants on account of their joint abandonment of the civilian institution where they were performing alternative labour service.
9. On the same date criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the seventeenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service.
10. On 27 June 2005 criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the first, second, fifth, twelfth, thirteenth, sixteenth and nineteenth applicants on account of their abandoning the civilian institutions where they were performing alternative labour service. These proceedings were divided into individual sets of proceedings in respect of each of these applicants on 18 August 2005.
11. On 22 August 2005 the first, fifth, thirteenth and sixteenth applicants were formally charged under Article 361 § 4 of the CC.
12. On the same date the Gegharkunik Regional Court examined the investigator’s motion seeking to have them detained on the grounds that they had committed an offence under Article 361 § 4 of the CC and could abscond. The Regional Court decided to grant this motion, stating that the imputed acts fell into the category of crimes of medium gravity and taking into account their nature and degree of dangerousness. The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
13. On 31 August 2005 the investigator decided to modify the charges against the applicants by bringing a new charge under Article 362 § 1 of the CC on the ground that, pursuant to Section 21 § 2 of the Alternative Service Act, persons performing alternative labour service bore equal liability for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service.
14. On 6 and 8 September 2005 the prosecutor approved the indictments under Article 362 § 1 of the CC and the cases were transferred to the Regional Court for examination on the merits.
15. On 29 November 2005 the fifth, thirteenth and sixteenth applicants filed a motion with the Regional Court, arguing that Article 362 § 1 of the CC was not applicable to their cases, since they were not servicemen, and seeking to have the proceedings terminated.
16. On 1 and 2 March 2006 the Regional Court decided to remit the cases for further investigation upon the prosecutor’s motions in order to clarify, inter alia, which norms of criminal law had been breached by the imputed acts and whether the applicants could be considered as subjects of a military crime as defined by Article 356 § 5 of the CC, taking into account that it applied only to servicemen. The Regional Court stated that the applicants’ detention was to remain unchanged.
17. On 9 March 2006 the applicants filed motions with the General Prosecutor, seeking to be released. They argued that they had fully cooperated with the investigating authority, had always appeared whenever summoned, had never obstructed the investigation, had never committed an offence and had never made any attempts to abscond.
18. On 13 and 16 March 2006 the first, fifth, thirteenth and sixteenth applicants lodged appeals against the decisions of 1 and 2 March 2006, seeking to have the proceedings terminated and to be released. They argued that Article 362 § 1 of the CC was not applicable to their cases since they were not servicemen. The acts committed by them were not a criminal offence, since at the material time the CC did not prescribe any penalties for the unauthorised abandonment of the place of alternative labour service. In spite of this, they were charged and detained which violated their right to liberty. The criminal law required that all offences be incorporated into the CC, so the reliance on Section 21 § 2 of the Alternative Service Act had been unlawful. The applicants further raised the same arguments as in their motions of 9 March 2006. They invoked, inter alia, Article 5 §§ 1 (c) and 3 of the Convention.
19. On 10 April 2006 the Criminal and Military Court of Appeal decided to dismiss the first applicant’s appeal and to uphold the Regional Court’s decision in its part remitting the first applicant’s case for further investigation. The Court of Appeal found that the investigating authority had failed to clarify whether the first applicant could be considered as a subject of an offence against military rules. Therefore it was necessary to do so in the course of further investigation. Similar decisions were taken in respect of the fifth, thirteenth and sixteenth applicants on 11 and 13 April 2006.
20. At the same time, the Court of Appeal decided to grant the applicants’ appeals in their part concerning their release from detention. As regards the first and thirteenth applicants’ detention, the Court of Appeal found that the grounds envisaged by Article 135 of the Code of Criminal Procedure (CCP) necessitating their detention were absent. In particular, before abandoning their places of service the first and thirteenth applicants had informed the prosecutor of their addresses and had not made any attempts to abscond during the first three months of the investigation. They had never obstructed the proceedings and there were no grounds to believe that they would commit another offence. In such circumstances, the first and thirteenth applicants had shown proper behaviour during the proceedings and it was no longer necessary to keep them in detention.
21. As regards the fifth and sixteenth applicants’ detention, the Court of Appeal found that the Regional Court had provided no reasons for leaving the detention unchanged, despite the fact that there were no grounds to keep the fifth and sixteenth applicants in detention.
22. On 17, 18 and 20 April 2006 the applicants lodged appeals on points of law against these decisions, which were dismissed by the Court of Cassation on 26 May and 1 June 2006.
23. On 22 August 2005 the second, twelfth and nineteenth applicants were formally charged under Article 361 § 4 of the CC.
24. On the same date the Gegharkunik Regional Court granted the investigator’s motion seeking to have them detained on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 12 above). The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
25. On 31 August 2005 the charges against the applicants were changed to Article 362 § 1 of the CC, with reliance on Section 21 § 2 of the Alternative Service Act. The indictments under that Article were approved on 6 and 8 September 2005 and the cases were transferred to the Regional Court for examination on the merits.
26. On 21 November 2005 the applicants filed a joint motion with the Regional Court, arguing that Article 362 § 1 of the CC was not applicable to their cases, since they were not servicemen, and seeking to have the proceedings terminated and to be released.
27. On 2 December 2005 the Regional Court found the applicants guilty under Article 361 § 4 of the CC and sentenced them to two years and six months’ imprisonment.
28. On 14 December 2005 they lodged appeals against their conviction, in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen. They sought to be acquitted and released from detention.
29. On 21 February 2006 the Criminal and Military Court of Appeal, upon the prosecutor’s motion, quashed the twelfth applicant’s conviction and remitted the case for further investigation on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 19 above). The Court of Appeal stated that the twelfth applicant’s detention was to remain unchanged.
30. On 24 February 2006 the nineteenth applicant filed a motion with the Criminal and Military Court of Appeal, arguing that his detention was unjustified and seeking to be released.
31. On the same date the Court of Appeal quashed the nineteenth applicant’s conviction and remitted the case for further investigation on the same grounds as in the twelfth applicant’s case (see paragraph 29 above). The Court of Appeal stated that the nineteenth applicant’s detention was to remain unchanged. A similar decision was taken by the Court of Appeal in the second applicant’s case on 27 February 2006.
32. On 3 and 6 March 2006 the second, twelfth and nineteenth applicants filed motions with the General Prosecutor, raising the same arguments as in the motions filed in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 17 above) and seeking to be released.
33. On 3, 6 and 7 March 2006 the applicants lodged appeals on points of law against the decisions of 21, 24 and 27 February 2006, raising arguments similar to those raised in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above).
34. On 13 March the twelfth applicant was released from detention upon a written undertaking not to leave.
35. On 14 April 2006 the Court of Cassation dismissed the nineteenth applicant’
36. On 21 April 2006 the second applicant was released from detention upon a written undertaking not to leave.
37. On 7 July 2006 the Court of Cassation dismissed the second and twelfth applicants’ appeals on points of law.
38. On 17 August 2005 the seventh and ninth applicants and on 18 August 2005 the sixth and eighth applicants were formally charged under Article 361 § 5 of the CC.
39. On 17 August 2005 the Gegharkunik Regional Court granted the investigator’s motion seeking to have the seventh and ninth applicants detained on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 12 above). Similar decisions were taken in respect of the sixth and eighth applicants on 18 August 2005. The applicants were present at the respective hearings. These decisions were subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
40. On 1 September 2005 the charges against the applicants were changed to Article 362 § 1 of the CC, with reliance on Section 21 § 2 of the Alternative Service Act. The joint indictment under that Article was approved on 6 September 2005 and the case was transmitted to the Regional Court for examination on the merits.
41. On 20 October 2005 the applicants filed a motion with the Regional Court, seeking to have the criminal proceedings terminated and to be released.
42. On 3 November 2005 the Regional Court found the applicants guilty under Article 361 § 5 and sentenced them to three years’ imprisonment.
43. On an unspecified date they lodged a joint appeal, in which they argued that the acts committed by them were not punishable under criminal law and had not been qualified correctly since they were not servicemen.
44. On 27 February 2006 the Criminal and Military Court of Appeal quashed their conviction and remitted the case for further investigation on the same grounds as in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 19 above). It further added that criminal liability could be imposed only if the committed act contained all the elements of an offence. Both the investigating authority and the Regional Court had failed to clarify whether the applicants could be considered as subjects of military offences under Articles 361 and 362 of the CC, taking into account that only servicemen could be considered as such subjects pursuant to Article 356 of the CC. As regards the applicants’ detention, the Court of Appeal found that it was to remain unchanged, since the grounds for their detention had not ceased.
45. On 7 March 2006 the applicants lodged a joint appeal on points of law, raising arguments similar to those raised in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above).
46. On 9 March 2006 the applicants filed a joint motion with the General Prosecutor, seeking to be released, raising the same arguments as in the motions filed on 9 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 17 above).
47. On 20 April 2006 the Court of Cassation dismissed the appeal on points of law. The Court of Cassation ordered, however, that the applicants be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above).
48. On 22 August 2005 criminal proceedings were instituted under Article 361 § 1 of the CC in respect of the fourteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service.
49. On 27 September 2005 the applicant was formally charged under Article 362 § 1 of the CC.
50. On the same date the Avan and Nor Nork District Court of Yerevan granted the investigator’s motion seeking to have the applicant detained, finding that he could abscond, obstruct the proceedings and avoid serving his penalty. The applicant was present at this hearing. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
51. On 28 September 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits.
52. On 2 February 2006 the applicant filed a motion with the District Court, arguing that Article 362 § 1 was not applicable to his case, since he was not a serviceman, and seeking to have the criminal proceedings terminated or to be released.
53. On 27 February 2006 the District Court decided to remit the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The District Court replaced the applicant’s detention with a written undertaking not to leave and ordered his release, stating that his behaviour during the trial provided grounds to believe that he would not abscond or commit another crime.
54. On 13 March 2006 the applicant lodged an appeal against this decision, seeking to have the proceedings terminated since he was not a serviceman and the act committed by him was not criminally punishable.
55. On 3 May 2006 the Criminal and Military Court of Appeal dismissed the appeal, finding that there was a need to carry out further investigation.
56. On 8 May 2006 the applicant lodged an appeal on points of law which was dismissed by the Court of Cassation on 9 June 2006.
57. On 14 October 2005 criminal proceedings were instituted under Article 362 § 1 of the CC in respect of the fifteenth applicant on account of his abandonment of the civilian institution where he was performing alternative labour service.
58. On 19 October 2005 the applicant was formally charged under Article 362 § 1 of the CC.
59. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion seeking to have the applicant detained, finding that there were sufficient grounds to believe that he could abscond, obstruct the investigation and commit another offence. The applicant was present at this hearing. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
60. On 4 November 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits.
61. On 3 March 2006 the District Court decided to remit the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The District Court stated that the applicant’s detention was to remain unchanged.
62. On 9 March 2006 the applicant filed a motion with the General Prosecutor, raising the same arguments as in the motions filed by other applicants and seeking to be released.
63. On 17 March 2006 the applicant lodged an appeal against the decision of 3 March 2006, seeking to have the proceedings terminated and to be released. He raised the same arguments as in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above).
64. On the same date the applicant was released from detention upon a written undertaking not to leave.
65. On 19 April 2006 the Criminal and Military Court of Appeal dismissed the appeal, finding that there was need to carry out further investigation.
66. On 28 April 2006 the applicant lodged an appeal on points of law which was dismissed by the Court of Cassation on 1 June 2006.
67. On 24 August 2005 at 6 p.m. the seventeenth applicant was arrested in connection with the criminal proceedings against him.
68. On 26 August 2005 he was formally charged under Article 362 § 1.
69. On the same date at 4 p.m. the applicant was brought before Judge A. of the Kentron and Nork-Marash District Court of Yerevan who, after having heard him, decided to grant the investigator’s motion seeking to have him detained, finding that the applicant, if he remained at large, could obstruct the investigation and abscond. This decision was subject to appeal to the Criminal and Military Court of Appeal within fifteen days.
70. On 2 September 2005 the prosecutor approved the indictment under Article 362 § 1 of the CC and the case was transmitted to the District Court for examination on the merits.
71. On 15 September 2005 the District Court found the applicant guilty under Article 362 § 1 of the CC and sentenced him to two years and six months’ imprisonment.
72. On an unspecified date the applicant lodged an appeal.
73. On 8 February 2006 the applicant filed a motion with the Criminal and Military Court of Appeal, arguing that his detention was unjustified and seeking to be released.
74. On 16 March 2006 the Criminal and Military Court of Appeal quashed the applicant’s conviction and remitted the case for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases. The Court of Appeal stated that the applicant’s detention was to remain unchanged.
75. On 23 March 2006 the applicant lodged an appeal on points of law, seeking to have the proceedings terminated and to be released. He raised the same arguments as in the appeals lodged on 13 and 16 March 2006 in the first, fifth, thirteenth and sixteenth applicants’ cases (see paragraph 18 above).
76. On 24 March 2006 the applicant filed a motion with the General Prosecutor, raising the same arguments as in the motions filed by other applicants and seeking to be released.
77. On 20 April 2006 the Court of Cassation dismissed the applicant’s appeal on points of law, finding that the Court of Appeal’s decision was well-founded. The Court of Cassation ordered, however, that the applicant be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above).
78. On 9 August 2005 separate sets of criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the third and eighteenth applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service.
79. On the same date the third and eighteenth applicants made written undertakings not to leave.
80. On 15 August 2005 they were formally charged under Article 361 § 4.
81. On 16 August 2005 similar criminal proceedings were instituted in respect of the fourth applicant.
82. On 12 September 2005 he was formally charged under Article 361 § 4 and made a written undertaking not to leave.
83. On 28 October 2005 the Syunik Regional Court found the third and eighteenth applicants guilty under Article 361 § 4 of the CC and sentenced them to two years’ imprisonment. They were taken into custody.
84. On 8 November 2005 the Shirak Regional Court found the fourth applicant guilty under Article 361 § 4 of the CC and sentenced him to two years and six months’ imprisonment. He was taken into custody.
85. On 10 November 2005 the third applicant lodged an appeal, seeking to be acquitted and released from detention since he was not a serviceman and the act committed by him was not criminally punishable. On unspecified dates the fourth and eighteenth applicants also lodged appeals.
86. On 8 February 2006 the third and fourth applicants filed motions with the Criminal and Military Court of Appeal, arguing that the acts committed by them had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released.
87. On 9 February 2006 the eighteenth applicant filed a motion with the Court of Appeal, arguing that his continued detention was unjustified and seeking to be released.
88. On 28 February 2006 the third and fourth applicants filed similar motions.
89. On the same date the Court of Appeal quashed the third and fourth applicants’ convictions and remitted the cases for further investigation upon the prosecutor’s motions for the same reasons as in the other applicants’ cases. The Court of Appeal stated that their detention was to remain unchanged.
90. On 6 March 2006 the eighteenth applicant filed two more motions with the Court of Appeal, arguing that the act committed by him had not constituted a criminal offence at the material time and seeking to have the proceedings terminated and to be released.
91. On the same date the Court of Appeal quashed the eighteenth applicant’s conviction and similarly remitted the case for further investigation. The Court of Appeal stated that his detention was to remain unchanged.
92. On 8 March 2006 the third and fourth applicants lodged appeals on points of law against the Court of Appeal’s decisions of 28 February 2006 (see paragraph 89 above), seeking to have the proceedings terminated and to be released.
93. On 9 March 2006 the third and fourth applicants filed motions with the General Prosecutor, seeking to be released.
94. On 14 and 15 March 2006 a similar appeal and motion were lodged by the eighteenth applicant.
95. On 7 April 2006 the Court of Cassation dismissed the applicants’ appeals, finding that the Court of Appeal’s decision was well-founded. The Court of Cassation ordered, however, that they be released on the same grounds as in the nineteenth applicant’s case (see paragraph 35 above).
96. On 17 August 2005 separate sets of criminal proceedings were instituted under Article 361 § 4 of the CC in respect of the tenth and eleventh applicants on account of their unauthorised abandonment of the civilian institutions where they were performing alternative labour service.
97. On 14 October 2005 the applicants were formally charged under Article 361 § 4 and made written undertakings not to leave.
98. On 3 and 7 March 2006 the Malatia-Sebastia District Court of Yerevan decided to remit the applicants’ cases for further investigation upon the prosecutor’s motion for the same reasons as in the other applicants’ cases.
99. The applicants’ appeals against these decisions were dismissed by the Criminal and Military Court of Appeal and the Court of Cassation on 13 and 14 April and 26 May and 1 June 2006 respectively.
100. On 22 June 2006 the Gegharkunik Regional Prosecutor decided to terminate the criminal proceedings against the first applicant on the ground that the offence in question was of medium gravity, he had spent about eight months in detention and the act in question had ceased to be dangerous for society.
101. On 12 September 2006 the General Prosecutor decided to quash this decision and to terminate the proceedings for the lack of corpus delicti, with reference to Article 35 § 1 (2) of the CCP. The General Prosecutor found, in particular, that at the material time the CC did not prescribe an offence for the act of unauthorised abandonment of the place of alternative labour service and such an offence was incorporated in the CC only by the amendments introduced on 1 June 2006 (see also paragraphs 112-113 below). The General Prosecutor apologised to the first applicant and informed him that it was open to him to claim compensation pursuant to Article 66 of the CCP.
102. Around the same period, identical decisions were taken in respect of all the other applicants.
103. On various dates in December 2006 and January, February, March and May 2007 the applicants instituted civil proceedings against the Ministry of Finance and Economy, seeking pecuniary and non-pecuniary damages in connection with the criminal proceedings against them, including their detention. The claims for pecuniary damage included alleged transportation and medical costs, expenses related to food parcels and lost earnings.
104. On various dates in March, April, May and July 2007 the Kentron and Nork-Marash District Court of Yerevan examined and dismissed all the applicants’ claims, finding the claims for pecuniary damage to be unsubstantiated. As regards the claims for non-pecuniary damage, these claims were dismissed because Armenian law did not provide such a form of compensation.
105. On various dates in March, April, May, June and July 2007 the applicants lodged appeals.
106. On various dates in June, July, September, October and November 2007 the Civil Court of Appeal decided to dismiss the appeals and to uphold the judgments of the District Court.
107. On various dates in December 2007 and January and February 2008 the applicants lodged appeals on points of law, which were declared inadmissible by the Court of Cassation for lack of merit on 21 January and 11 February 2008.
108. The relevant general and other provisions read as follows:
“1. Criminal legislation of Armenia consists of this Code. New laws which envisage criminal liability shall be incorporated into the Criminal Code. ...”
“The only ground for criminal liability is the commission of an offence, that is of an act which has all the features of corpus delicti envisaged by criminal law.”
“1. Only criminal law determines whether an act is criminal and punishable, as well as its other criminal and legal consequences.
2. The application of criminal law by analogy is prohibited.”
“1. Evasion of regular military service, military training or draft, in the absence of lawful grounds for exemption from such service, shall be punishable by a penalty in the amount of three hundred to five hundred times the minimum wage, or by detention for a period not exceeding two months or imprisonment for a period not exceeding two years.”
109. The relevant provisions of Chapter 35 of the CC, entitled “Offences Against the Military Service Rules”, as in force at the material time, read as follows:
“5. The subjects of offences against the military service rules envisaged by this Chapter are the persons who serve in the armed forces of Armenia and in other forces of Armenia on the basis of conscription or a contract, as well as, during training sessions, the persons liable for military service.”
“1. Unauthorised abandonment of the military unit or the place of service by a serviceman performing military service on the basis of conscription or a contract ... for a period not exceeding one month [or] three or more times within three months, each time for a period from one to three days, shall be punishable by detention for a period not exceeding three months or placement into a disciplinary battalion for a period not exceeding one year.
...
4. The [act] envisaged in [paragraph 1] of this Article, if the unauthorised absence lasted longer than one month, but for the purpose of temporary evasion from military service, shall be punishable by imprisonment for a period not exceeding three years.
5. The [act] envisaged in [paragraph 1] of this Article, if committed by a group of people with prior agreement, shall be punishable by imprisonment from two to five years.”
“1. Desertion, that is unauthorised abandonment of the military unit or the place of service for the purpose of definitive evasion from military service, as well as the failure to report for service for the same purpose, shall be punishable by imprisonment for a period not exceeding four years. ...”
110. On 19 May 2005 the Government presented to the National Assembly a draft law, proposing to introduce an amendment in Article 327 of the CC which prescribed a penalty for evading military service, by inserting into the phrase “military service” the words “or alternative”. The Explanatory Note to the draft law stated that the adoption of the Alternative Service Act violated the principle of equality of all before the law because persons evading alternative service remained unpunished in contrast to those who evaded regular military service.
111. This law was adopted by the National Assembly on 16 December 2005 and entered into force on 4 February 2006 (Law HO-34-N).
112. On 30 March 2006 the Government presented another draft law to the National Assembly, proposing to introduce another amendment to Article 327 of the CC by adding a new provision, namely Article 327.1, that would make punishable the act of unauthorised abandonment of the place of service by a person performing alternative labour service. The Explanatory Note to the draft law stated that there were currently up to 29 criminal cases pending before the courts in which charges were brought under Article 361 of the CC. The CC was adopted before the Alternative Service Act and naturally it could not prescribe a penalty for the unauthorised abandonment of the place of service by persons performing alternative labour service.
113. This law was adopted by the National Assembly on 1 June 2006 and entered into force on 1 July 2006 (Law HO-59-N).
114. The relevant provisions of the CCP, as in force at the material time, provide:
“1. Criminal proceedings may not be instituted and criminal prosecution may not be carried out, while instituted criminal proceedings must be terminated, if: ... (2) the act lacks corpus delicti; ...”
“1. A person shall be considered to be acquitted if criminal prosecution or criminal proceedings against him were terminated on ... the grounds envisaged by[, inter alia, Article 35 § 1(2)] of this Code or if he was acquitted by a court judgment.
...
3. An acquitted person shall be ... entitled to claim full compensation of pecuniary damage caused as a result of unlawful arrest, detention, indictment and conviction, taking into account the possible lost profits. ...”
“1. The court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) obstruct the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment.”
115. The relevant provisions of the Civil Code provide:
“1. The person whose rights have been violated may claim full compensation for the damage suffered, unless the law or a contract envisages a lower amount of compensation.
2. Damages are the expenses borne or to be borne by the person, whose rights have been violated, in connection with restoring the violated rights, loss of his property or damage to it (material damage), including lost earnings which the person would have gained in normal conditions of civil circulation, had his rights not been violated (lost income). ...”
“1. Damage caused as a result of unlawful conviction, [unlawful] criminal prosecution, [unlawful] imposition of a preventive measure in the form of detention or a written undertaking not to leave, and [unlawful] imposition of an administrative penalty shall be compensated in full, in a procedure prescribed by law, by the Republic of Armenia, regardless of the fault of the officials of the body of inquiry, the investigating authority, the prosecutor’s office or the courts. ...”
116. The relevant provisions of the Act, with their subsequent amendments which were introduced on 22 November 2004 and entered into force on 9 January 2005, read as follows:
“1. Alternative service, within the meaning of this Act, is the service replacing the compulsory fixed-period military service which does not involve the carrying, keeping, maintenance and use of arms, and which is performed both in military and civilian institutions.
2. Alternative service includes the following types: (a) alternative military [service, namely] military service performed in the armed forces of Armenia which does not involve being on combat duty, and the carrying, keeping, maintenance and use of arms; and (b) alternative labour [service, namely], labour service performed outside the armed forces of Armenia.
3. The purpose of alternative service is to ensure the fulfilment of a civic obligation before the motherland and society and it does not have a punitive, depreciatory or degrading nature.”
“1. An Armenian citizen, whose creed or religious beliefs do not allow him to carry out military service in a military unit, including the carrying, keeping, maintenance and use of arms, may perform alternative service.”
“2. Persons performing alternative labour service shall bear liability for violations of the law and crimes, as well as for pecuniary damage caused to the state, on general principles, according to a procedure prescribed by law.
Persons performing alternative labour service shall bear equal responsibility for the unauthorised abandonment of the place of service to that borne by servicemen performing compulsory military service, according to a procedure prescribed by law [Note: this paragraph was repealed on 1 July 2006].”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-5
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-86364
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FERLA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1966 and lives in Fałkowo, Poland.
6. On 24 December 1998 the applicant and his wife attended a dinner organised by their neighbours. An argument broke out between the applicant and his neighbour. They left the room and began struggling in the kitchen. Subsequently, they stopped the tussle and the applicant returned home. Apparently, a few minutes later, when the neighbour was on his way to a church, the applicant assaulted him and beat him unconscious.
7. On 25 December 1998 the applicant was arrested on charges of aggravated assault and placed in the Gdańsk District Detention Centre (Rejonowy Areszt Śledczy).
8. On the same date the applicant’s wife gave a statement to the police. She stated that she had attended the dinner, but she had not known anything about the struggle in which her husband had taken part, as she had stayed in the room with the other women. She had found out about it only after her husband had been arrested by the police.
9. On 26 December 1998 the applicant’s wife confirmed her previous statement.
10. The applicant’s wife applied for permission to visit the applicant in prison. On an unknown date the Sopot District Prosecutor (Prokurator Rejonowy) refused her request.
11. On 4 February 1999 the applicant applied for permission to be visited by his wife. On 19 February 1999 the Sopot District Prosecutor refused this request. The prosecutor held that on account of the fact that the applicant’s wife had been called as a witness by the prosecution no such permission could be granted.
12. Meanwhile, on 11 February 1999 the applicant’s wife again gave a statement to the police. Having been duly informed of her rights, she refused to testify against her husband in the case.
13. On 18 March 1999 the prosecutor allowed the applicant’s wife to visit the applicant in prison.
14. On 23 March 1999 the applicant’s wife visited him in prison. However, they could communicate during the visit only by internal phone and she was not allowed to bring their four-year old son.
15. On 27 May 1999 the applicant requested the Gdańsk District Court to allow his wife to visit him. On 30 May 1999 he lodged a complaint with the District Court against the decision to refuse his wife permission to visit him.
16. On 23 June 1999 the Gdańsk Regional Court (Sąd Okręgowy) informed the applicant that he should not be allowed to have any personal contact with his wife as she was a witness in the proceedings against him. However, the court stressed that the applicant could be visited by adults who were not witnesses in his case and by his four-year old son. The court further noted that the next hearing was set for 16 August 1999. If the applicant’s wife testified on that date she would be allowed to visit him in prison.
17. On 29 June 1999 the applicant asked the Regional Court to indicate a person who could accompany his son to the detention centre. The court in reply informed the applicant that he should indicate such a person. As the applicant failed to do so, his son did not visit him in prison.
18. On 8 July 1999 the President of the Regional Court informed the applicant that his wife was not allowed to visit him in the detention centre since she had testified twice in the investigative stage of the proceedings and those testimonies were relevant to the offences with which the applicant had been charged. The date of the hearing in the applicant’s case had been set for 20 May 1999 and his wife ought to have testified on that date. However, a request by the applicant’s lawyer for an expert psychiatrist’s report caused an adjournment of the trial until 16 August 1999. The president further noted that until the applicant’s wife testified in the trial the court had the right to refuse her requests to visit the applicant, in order to secure the proper conduct of the proceedings.
19. The applicant’s wife failed to appear at the hearing held on 16 August 1999 before the Gdańsk Regional Court and in consequence she was fined.
20. The applicant’s wife subsequently applied again for permission to visit him in prison.
21. During the hearing held on 5 November 1999 the applicant’s wife refused to testify in the proceedings against her husband.
22. The applicant submitted that his wife was allowed to visit him in prison before the end of November 1999.
23. On 10 December 1999 the applicant was convicted as charged and sentenced to four years’ imprisonment. The court extended the applicant’s detention until the judgment became final.
24. On 24 March 2000 the applicant and his wife were deprived of their parental rights in respect of their son S. F. The child was placed in a care institution. The court held that the applicant was in prison and the mother was a regular abuser of alcohol. The court further pointed out that on 19 March 2000 the mother had left her son unattended in the street, which had considerably endangered her child’s security.
25. On 26 April 2000 the Court of Appeal upheld the applicant’s conviction.
26. Pursuant to Article 217 of the Code of Execution of Criminal Sentences of 1997 a detainee is allowed to receive visitors, provided that he obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun).
The relevant extracts from the Recommendation read as follows:
“Part II Conditions of imprisonment
Contact with the outside world
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
VIOLATED_ARTICLES: 8


ITEMID: 001-4561
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PIPOLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1959 and residing in Genoa; she is unemployed. Before the Court, she is represented by Mr Paolo Bordonaro, lawyer in Genoa.
In 1983 the applicant married G.L.; they had four children: L, born in 1983, F., born in 1985, S., born in 1986 and G., born in 1988.
Since 28 May 1987, L. has been looked after by his paternal grandmother.
The applicant used to live with her husband and the three children in a small apartment with no electricity and no heating.
On a date which has not been specified, the applicant's husband abandoned her and the children; he declared that he did not intend to take care of his children anymore.
In 1988 the social assistants informed the Juvenile Court of Genoa of the critical condition in which the applicant's children had to live.
S., F. and G. were taken into public care on 23 March 1989 and 29 July 1989 respectively.
On 14 November 1989 the applicant and her husband were given instructions by the Genoa Youth Court as to the way in which to raise the children. They failed to follow these instructions. As a consequence, on 10 August 1990 proceedings were opened with a view to declaring the children's state of abandonment.
The applicant, her husband and her father were summoned to appear before the youth court at the hearing of 27 October 1990, with the warning that, if they failed to appear, the children would be declared available for adoption. They did not appear before the court, and they did not provide any explanation or justification for their absence.
By decisions delivered on 21 December 1990, the court ruled that F., S. and G were available for adoption and appointed a guardian for them. This decision was filed with the court’s registry on 29 December 1990.

Following the father's appeal against these decisions, on 10 April 1991 the Genoa Youth Court acknowledged that the applicant had always taken care of her children, insofar as it had been possible for her, and that she was willing to co-operate in order to improve her children's living conditions. It considered therefore that the best solution in the children’s interests was to maintain the bonds of affection between the children and their mother. Accordingly the court suspended the proceedings for six months, confirmed the children’s placement into public care and ordered that a family be found which could take care of the three children or that an adequate children’s home be found. The court further allowed the appointment of an expert with a view to establishing whether the applicant or other relatives were fit to assume their parental responsibility.
On 3 July 1991, the children were placed in a children’s home.
On 28 October 1991 the youth court ordered a psychological report on the applicant and her husband, and on the links between them and the children.
In her report, filed on an unspecified date in January 1992, the psychiatrist stated that the applicant was unfit to assume her parental responsibility and that she might jeopardise the children’s future emotional development.
By a decision delivered on 31 January 1992, the Genoa Youth Court dismissed the father’s appeal against the declaration that the children were available for adoption and suspended any contact between the applicant and the children.
The applicant did not appeal against the declaration of availability for adoption as in fact she consented thereto.
The children were subsequently placed for adoption and apparently the three children were adopted by the same family. The applicant has not seen her children or received any information about them since January 1992.
On 31 January 1996 the applicant filed with the Genoa Youth Court a request that proceedings be opened with a view to informing her children about her life and situation. She invoked Article 8 of the Convention and Article 20 of the European Convention on Adoption and pointed out that she did not request to be given the address of her children, but that her children be given her address and information about her life and situation.
In a decision delivered on 18 March 1996 and filed with the registry on 21 March 1996, the Genoa Youth Court recalled that Article 73 of Law no. 184/83 prohibits anybody from divulging any information concerning adopted persons, with the exception, according to the interpretation of the doctrine and jurisprudence, of cases where there is a concrete interest, legally protected, in having access to secret information. The court explained that such concrete interest must be proven to exist in respect of the adopted persons and must be invoked by their guardian or legal representative. The court, noting that the request had been made by the mother who had lost her parental rights over the children, and that there was no evidence of the children’s concrete interest, refused the request.
Relevant law
Article 27 of Law no. 184 of 4 May 1983 (hereinafter referred to as “the Adoption Act”) provides that “with the adoption, the rights and obligations between the adopted person and its original family cease to exist”.
The Convention on Adoption signed in Strasbourg on 24 April 1967 was incorporated into Italian law by law no. 357 of 1974, which came into force on 25 August 1976.
Under Article 10 of that Convention, the family rights and obligations between the adopted person and his/her father and mother cease to exist.
Article 20 § 4 of that Convention provides that “public records shall be kept and, in any event, their contents reproduced in such a way as to prevent persons who do not have a legitimate interest from learning the fact that a person has been adopted or, if that is disclosed, the identity of his former parents.”
The relevant part of the explanatory report states that “the purpose of this Article is to avoid difficulties which may arise from:
- the natural parents’ knowledge of the adopter’s identity;
- publicity of adoption proceedings or public records relating to adoption.”