ITEMID: 001-73047
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DREW v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Anthony James Drew, is a British national who was born in 1963 and is currently detained in a mental hospital in Gwent. He is represented before the Court by Mr H. Davies Q.C. and Mr A. Jones, barristers practising in Cardiff. The respondent Government are represented by Ms E. Willmott, Foreign and Commonwealth Office
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 August 1995, following an assault upon his girlfriend and a man he believed she was involved with, the applicant was convicted of two offences of causing grievous bodily harm with intent, and was sentenced to concurrent terms of six years’ imprisonment.
It is likely that by the time the applicant was released, in April 1999, he was suffering from schizophrenia. He experienced the delusion that he was a special person who had been born 2000 years ago and had been sent to save sinners. He felt that people behaved strangely towards him and were constantly testing him. He was paranoid and began carrying a knife.
On 19 November 1999 the applicant, who had been using cannabis and Valium, went into a public house in Newport. He attracted attention because of his dishevelled appearance and his attempts to sell a watch to customers. The landlord told him to leave after one drink, but meanwhile one of the other customers, “M”, who was completely unknown to the applicant, noticed the knife in his pocket and attempted to take it from him. The applicant took the knife back and left the pub, followed by M. Outside, the applicant struck at M with the knife, cutting M’s hands. M and his companions retaliated, and the applicant was found by the police lying motionless on the ground. He was arrested and taken to hospital for treatment. When he was finally interviewed he told the police that for some time he had been harassed by gangsters, and that he had bought the knife to protect himself against them. He believed that M was a “sidekick” of the gang leader, and that M had tried to rob him and had stolen his girlfriend.
The applicant was charged with an offence of wounding with intent to cause grievous bodily harm, a “serious offence” for purposes of section 2 of the Crime (Sentences) Act 1997 and section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 (see below). He was initially remanded in custody in prison, but on 12 June 2000 he was transferred to a psychiatric hospital for examination, under the care of Dr Huckle. He remained there until 1 March 2001.
At the hospital the applicant was diagnosed as suffering from schizophrenia. He was prescribed antidepressants and increasing doses of an antipsychotic drug, Quetiapane. However, he proved resistant to this treatment, and to a second antipsychotic drug. In January 2001 he was prescribed Clozapine, an a-typical antipsychotic licensed especially for use in cases of treatment-resistant schizophrenia. Clozapine may be prescribed only by an approved psychiatrist and must be dispensed by an approved pharmacy. The applicant’s condition began to improve; he was complying with the treatment programme and was keen to receive further treatment.
The applicant did not claim to be unfit to plead and did not advance a defence of insanity. Instead, he pleaded guilty in the Crown Court at Cardiff on 1 August 2000. He appeared before the Recorder of Cardiff for sentencing on 1 March 2001. Dr Huckle and another approved consultant psychiatrist gave evidence that the applicant was suffering from schizophrenia and would be a serious danger to the public if released. They recommended that a hospital order be made under section 37 of the Mental Health Act 1983 Act with a restriction on his release, unlimited in time, under section 41 of the 1983 Act.
The Recorder explained that since the applicant had already been convicted, in 1995, of offences classed as “serious” under section 109(5) of the Powers of the Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”: see below), he had no choice but to sentence him to a term of life imprisonment. He fixed the minimum term to be served at two years and eight months’ imprisonment and remarked:
“I have to say I regret having to pass this sentence. Had I had power to do so I would have passed a sentence under the Mental Health Act, making you the subject of a hospital order with a restriction without limitation of time. That, for the reasons I have explained, is impossible. ...”
The applicant was taken immediately to Cardiff Prison, where he was admitted at approximately 4 p.m. and placed on the hospital wing. According to the prison medical records, he was examined by a doctor who noted that the applicant “presented as appropriate”, but was bemused at his sentence as he had been expecting to be sent to mental hospital.
No-one at the prison was authorised to prescribe or dispense Clozapine. The prison authorities contacted the Clozapine Monitoring Service, which advised that if the dose was interupted for 48 hours or longer the patient would have to return to the start of his medication programme. That night the applicant had difficulty in getting to sleep and was prescribed Zimovane, after which the prison log recorded that he appeared to sleep well.
The following day, 2 March 2001, the prison medical officer attempted to obtain a supply of Clozapine, but this was not possible, so Olanzapine was prescribed instead. At about 2 p.m. the applicant complained of feeling unwell. He was given 10 mg of Olanzapine and, according to the prison record, his mood improved. He appeared to sleep well that night. The following day (3 March 2001) he was again seen by a doctor who prescribed medication to help him sleep. The doctor described the applicant as appearing relaxed and talking appropriately. No particular problems were recorded in the prison medical log on 4 or 5 March 2001.
On 6 March 2001 Dr Huckle examined the applicant with a view to seeking his transfer to hospital. Dr Huckle’s report indicated that the applicant was refusing the treatment offered by the prison authorities. An application for his transfer to hospital was made to the Secretary of State under section 47 of the Mental Health Act 1983 on 7 March 2001.
On 8 March 2001 the applicant was examined by a second doctor, as required by section 47 of the 1983 Act. The second doctor’s report indicated that the applicant was becoming increasingly depressed and concluded that he should be transferred, because he had responded well to Clozapine in the past and that treatment was available only in a mental hospital.
On the same day the Secretary of State, having considered the medical reports, authorised the applicant’s transfer to hospital.
Dr Huckle noted in his report dated 5 February 2003:
“[The applicant] was in Cardiff Prison for eight days and there was a clear deterioration in his mental state during that time. A number of phone calls were received by [the hospital] about his deteriorating mental state by medical staff at the prison. He was becoming more paranoid and more withdrawn and there was concern that he would pose a risk to himself or possibly to others if he started to misinterpret the environment. As a result both myself and one of the Medical Officers prepared a medical recommendation which was sent to the Mental Health Unit of the Home Office for [the applicant] to be transferred under Section 47/49 of the Mental Health Act 1983, which was achieved ...
[The applicant] was returned to Clozapine on his return to [hospital] on 9 March 2002. The Clozapine was gradually increased. In the early stages of starting his medication he had clear ideas of reference in regard to other patients on the ward and showed increasing preoccupation. ...
Unfortunately when Clozapine is stopped there can result in a rebound psychosis whereby the symptoms come back with a vengeance and become more difficult to treat. There is evidence on the medical file that [the applicant’s] mental state was starting to deteriorate once the Clozapine stopped and it certainly took a number of months to actually get full control of his symptoms following his return to [hospital].”
Following his transfer, the applicant has remained in hospital. If and when the hospital authorities decide he no longer requires treatment in hospital, he will be returned to prison. Once the tariff period set by the judge has expired, it will be for the Parole Board to decide whether it is safe to release the applicant back into the community.
The applicant appealed against sentence, arguing that his mental illness had been the primary cause of his committing the offence, and that it was “inhuman and degrading”, in breach of Articles 3 and 5 of the Convention, to label him, by sentencing him to life imprisonment, as a deliberate wrongdoer deserving punishment. The Court of Appeal rejected those submissions (R. v. Anthony James Drew [2002] 2 Cr App R (S) 189; [2002] Crim LR 220), as follows:
“In the context of this case we cannot say that the sentence of life imprisonment which the Recorder was obliged to pass was incompatible with the rights of the [applicant] under either Article 3 or Article 5 of the European Convention. We accept that a sentence of imprisonment does carry a certain stigma. It is ... a public statement that the offender is a deliberate wrongdoer who deserves punishment, but we do not accept that the stigma should not be applied to those convicted of serious crimes but who suffer from mental illness, given that in every case they would only have been convicted at all because they were fit to plead and have been demonstrated at trial to have had at the material time the necessary mens rea. Although ... this Court has consistently encouraged the use of both hospital and restriction orders, it has always been open to Parliament to say, as it did in 1997, that in certain defined cases there is an assumption that the offender presents such a serious and continuing danger to the safety of the public that a hospital order with a restriction order will afford inadequate protection, and there must therefore be a sentence of life imprisonment. Given that a sentence of life imprisonment does afford greater protection to the public, and that the assumption is rebuttable, and that there is no evidence to show that an offender sentenced to life imprisonment will not receive appropriate medical treatment, we find it impossible to see how the introduction of the statutory assumption can be said to have infringed the [applicant’s] Convention rights.”
The applicant appealed to the House of Lords, arguing that it was wrong in principle to impose a punitive sentence of imprisonment on someone who was mentally ill and not fully criminally culpable, and that the imposition on him of the automatic life sentence was therefore contrary to Articles 3 and 5. Lord Bingham of Cornhill, giving the judgment of the Appellate Committee, observed that the applicant’s mental illness could properly be relied on as mitigating the criminality of his conduct, but not as absolving him of all responsibility for it. There would be strong grounds for challenging the compatibility of the automatic life sentence with Article 3 of the Convention if its effect were to deny a mentally disordered defendant the medical treatment which his condition required, but this was not a necessary result, since section 47 of the 1983 Act gave the Home Secretary power to transfer a defendant sentenced to life imprisonment to a hospital, and since the Home Secretary was obliged to act compatibly with the Convention and was subject to judicial review. In the present case, the Home Secretary acted very promptly. Although the interruption of the applicant’s medication during the eight days following his sentence caused him ill effects, these were not of sufficient severity to engage Article 3.
In March 1996 the Government issued a White Paper entitled Protecting the Public: The Government’s Strategy on Crime in England and Wales, (Cm 3190). Chapter 10 was headed “Automatic Life Sentences for Serious Violent and Sex Offenders” and explained their reasons for requiring indeterminate sentences for dangerous criminals:
“10.3. A wide range of serious violent and sex offences carry a maximum sentence of life imprisonment, including manslaughter, rape and the most serious woundings. In these cases the court has the discretion to impose a life sentence either because the offence is so serious that it merits the maximum available penalty, or because the trial judge feels unable to determine when it will be safe to release the offender. In either case, the trial judge will specify the tariff which must be served, and at the end of that period the Parole Board will determine whether the offender can safely be released.
10.4. The great advantage of the life sentence is its flexibility. It recognises that there are two separate considerations: the length of time the offender should serve as punishment for the offence he or she has committed (the tariff), and the question whether he or she can safely be released at the end of that period. However courts make very little use of the discretionary life sentence. In 1994, for example, 434 offenders were convicted of rape or attempted rape, but only 12 were sentenced to life imprisonment. In 1994, 217 offenders were convicted of a second serious violent or sexual offence, but only 10 received a discretionary life sentence.
10.5. This does not necessarily mean that the sentences imposed on violent and sex offenders are too lenient: long sentences are frequently imposed on offenders convicted of violent and sex offences . . . . But if a determinate sentence is imposed the offender must be released once that sentence has been served, even if there is every reason to believe that he or she will commit further serious offences. That has led to a number of tragic cases where offenders convicted of violent or sex offences have been released only to repeat their offences almost immediately.
10.6. It is essential that the public receives proper protection from serious, dangerous and persistent offenders. Long sentences are not sufficient, of themselves, to provide that protection: before potentially dangerous offenders are released an assessment must be made to see whether they still pose a risk. If an offender cannot safely be released he or she must continue to be detained – if necessary indefinitely.
10.7. This proposal is not designed to increase the time such offenders spend in prison as punishment for the offences they have committed. That will continue to be the responsibility of the trial judge, who will be expected to set a tariff appropriate to the seriousness of the offence, just as the judge would if he or she were imposing a determinate sentence. This will enable the risk presented by the offender to be assessed towards the end of the tariff, when it will be known in the case of a sex offender, for example, whether that offender had undertaken the sex offender treatment programme, and how he or she had responded to it. The proposal will ensure that when the tariff ordered by the court expires, offenders who represent a real risk to the public are not released unless and until the Parole Board is satisfied that it is safe to do so. Once released, they will remain on licence and subject to recall in the same way as other life sentence prisoners.”
It was said to be one of the key elements of the Government’s proposal (paragraph 10.10) that:
“the court will also have discretion not to pass the automatic life sentence in genuinely exceptional cases. This is intended to allow for occasional quite unforeseeable circumstances where it would plainly be unjust and unnecessary to impose the life sentence. But it should be emphasised that this provision will be designed to cover only genuinely exceptional cases. The court will be required to explain what were the exceptional circumstances which justified some other sentence in place of a life sentence . . . .”
The chapter concluded, in paragraph 10.11:
“10.11. Too often in the past, those who have shown a propensity to commit serious violent or sex offences have served their sentences and been released only to offend again. In many such cases, the danger of releasing the offender has been plain for all to see – but nothing could be done, because once the offender has completed the sentence imposed, he or she has to be released. Too often, victims have paid the price when the offender has repeated the same offences. The Government is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to impose an automatic indeterminate sentence, and releasing the offender if and only if it is safe to do so.”
Section 109(1)-(4) of the 2000 Act, which gave effect to the above recommendations, provides as follows:
“109 (1) This section applies where―
(a) a person is convicted of a serious offence committed after 30 September 1997; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence, that is to say―
(a) where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life,
(b) where he is under 21 at that time, a sentence of custody for life under section 94 above,
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.
(4) An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.”
There follows in subsection (5) a list of criminal offences all of which are serious offences for purposes of the section if committed in England and Wales. The list includes offences related to murder (although not murder itself, for which a mandatory life sentence is prescribed elsewhere), manslaughter, offences under section 18 of the 1861 Act, rape and attempted rape, unlawful sexual intercourse with a girl aged under 13, certain of the most serious firearms offences and robbery involving the possession of a firearm or imitation firearm. All are offences carrying a maximum penalty of imprisonment for life. In subsections (6) and (7) the section contains broadly comparable lists of serious offences committed in Scotland and Northern Ireland.
Section 109 reproduces (in its application to England and Wales) section 2 of the Crime (Sentences) Act 1997.
Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). The court can make a hospital order only if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder and that:
“the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37 (2) (a) (i)),
“the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37 (2) (b) (ii)).
Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary for the protection of the public from serious harm to make the order. A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal to order release more narrowly than in the case of an ordinary mental patient.
The Home Secretary may by warrant under section 47(1) direct the transfer of a defendant who is sentenced to a term of imprisonment but whose mental condition requires treatment in hospital to a named hospital. Such a transfer direction has the same effect as a hospital order (section 47(3)) and may under section 49 be coupled with a restriction order. These are the powers exercised by the Home Secretary in the applicant’s case.
The situation which arises where neither a sentence of imprisonment nor a hospital order, on its own, appears appropriate in the case of a particular offender was dealt with in the Government’s White Paper (“Protecting the Public”) mentioned above (Chapter 8, “Sex Offenders and Mentally Disordered Offenders”):
“8.12. The Government proposes changes in the arrangements for the remand, sentencing and subsequent management of mentally disordered offenders to provide greater protection for the public and to improve access to effective medical treatment for those offenders who need it. The central change, if adopted, would be the provision of a ‘hybrid order’ for certain mentally disordered offenders for whom the present form of hospital order is unsatisfactory, particularly those who are considered to bear a significant degree of responsibility for their offences. The order would enable the courts, in effect, to pass a prison sentence on an offender and at the same time order his immediate admission to hospital for medical treatment.
8.13. The hybrid order, together with other proposals amending the detail of the Mental Health Act 1983, would substantially increase the flexibility of arrangements for dealing with mentally disordered offenders at all stages from remand through to rehabilitation. In particular, it would enable the courts to deal with some of the most difficult cases in a way which took proper account of the offender’s need for treatment; the demands of justice; and the right of other people to be protected from harm.
8.14. Existing sentencing arrangements for offenders who are mentally disordered require the court to decide either to order the offender’s detention in hospital for treatment, or to sentence him to imprisonment, or to make some other disposal. In some cases, an offender needs treatment in hospital but the circumstances of the offence also require a fixed period to be served in detention. This may be because the offender is found to bear some significant responsibility for the offence notwithstanding his disorder, or because the link between the offending behaviour and the mental disorder is not clear at the time of sentencing. The hybrid disposal would be a way of enabling the requirements of sentencing in such cases to be met. Under the order, an offender would remain in hospital for as long as his mental condition required, but if he recovered or was found to be untreatable during the fixed period set by the court, he would be remitted to prison. The hybrid order was recommended for use in sentencing offenders suffering from psychopathic disorder by the Department of Health and Home Office Working Group on Psychopathic Disorder. The Government is considering whether it might be made available in respect of offenders suffering from all types of mental disorder currently covered by mental health legislation.”
Legislative effect was given to this proposal by section 45A of the 1983 Act, inserted by section 46 of the 1997 Act. So far as relevant the section provides:
“ (1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law –
(a) the conditions mentioned in subsection (2) below are fulfilled; and
(b) except where the offence is one the sentence for which falls to be imposed under section 2 of the Crime (Sentences) Act 1997, the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (‘the relevant sentence’) in respect of the offence.
(2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners –
(a) that the offender is suffering from psychopathic disorder;
(b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(c) that such treatment is likely to alleviate or prevent a deterioration of his condition.
(3) The court may give both of the following directions, namely –
(a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a ‘hospital direction’); and
(b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a ‘limitation direction’).
(4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court.
(5) A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment, or of some other person representing the managers of the hospital that arrangements have been made –
(a) for his admission to that hospital; and
(b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions;
and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.
(8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction.
(9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.
(10) The Secretary of State may by order provide that this section shall have effect as if the reference in subsection (2) above to psychopathic disorder included a reference to a mental disorder of such other description as may be specified in the order.”
This section confers a power exercisable in the case of those upon whom automatic life sentences were required to be imposed under section 2 of the 1997 Act and (by virtue of paragraph 1(4) of Schedule 11 to the 2000 Act) section 109 of the 2000 Act, but the section applies only to those suffering from psychopathic disorder since the power conferred by subsection (10) to extend the application of the section to other descriptions of mental disorder has not been exercised in England and Wales. In contrast, in Scotland section 59A of the Criminal Procedure (Scotland) Act 1995, inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997, provides for a disposal by means of a sentence of imprisonment and an allied hospital order in any appropriate case, whatever the nature of the mental disorder.


ITEMID: 001-75890
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BABYLONOVA v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - financial award
JUDGES: Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 4. The applicant was born in 1951 and lives in Nové Zámky.
5. On 18 August 1995 the applicant and her husband entered into a contract for the purchase of a family house and a plot of land from Mr and Mrs D.
6. Mr D., who was registered as permanently resident (trvalý pobyt) at the house’s address, undertook in the contract to secure his deregistration by 21 August 1995.
7. The applicant and her husband then became the owners of the property and moved into the house. However, Mr D. failed to deregister himself from the relevant register, which was kept by the municipal office (Obecný úrad) of Nové Zámky.
8. In a letter of 2 March 2001 in reply to the applicant’s enquiry, the Nové Zámky district prosecutor (Okresný prokurátor) informed her that registration of permanent places of residence was governed by the Registration of Citizens’ Place of Residence Act (Law no. 135/1982, see “Relevant domestic law and practice” below) in conjunction with the Regulation on Enforcement of the Registration of Citizens’ Place of Residence Act (Regulation no. 146/1982). Individuals were obliged to report the taking-up of a new permanent place of residence to the municipal office of the municipality in which that residence was located within three days. Registration of a new permanent place of residence entailed an automatic cancellation of the registration at the previous one. A registration of a permanent place of residence could only be cancelled without registering a new one if the person concerned had lawfully emigrated from Slovakia or if it was discovered that the registration had been based on invalid or forged documents. As Mr D. had not applied for registration of a new permanent place of residence, the Nové Zámky municipal office had no legal authority under the existing legislation to cancel his previous registration at the applicant’s home address.
9. On 22 March 2001 the applicant and Mr D. made a joint written declaration to the effect that Mr D. was not resident at the house in question, that he had no right of use in respect of it and that he was not contributing to the costs of its use. Mr D. further declared that he had applied to be deregistered as permanently resident at the house, that his application had been dismissed and that he was homeless and staying in different locations.
10. In a letter of 24 May 2001, in reply to her enquiry, the head office of the Police Corps informed the applicant that section 5(1) of a new Registration of Citizens’ Place of Residence Act (Law no. 253/1998 – see “Relevant domestic law and practice” below), which was to come into force on 1 January 2002, could offer a solution to her problem. This legal provision enabled a person to be registered as a permanent resident in a municipality where he or she was born or was habitually resident (kde sa zdržuje), without actually having any specific address there. The letter further stated that the registration of a permanent place of residence at a certain address did not confer a legal right to live there and was merely evidentiary in nature.
11. On an unspecified date the applicant applied for a social contribution towards her dwelling costs (príspevok na bývanie). The number of persons registered as permanently resident at a dwelling was a relevant factor in considering eligibility for such contributions and in calculating the amount to be paid. On 25 April 2001 the Nové Zámky municipal office issued a certificate to the effect that three persons were registered as permanently resident at the applicant’s address, namely the applicant, her husband and Mr D. The municipal office issued a similar certificate on 5 April 2004. Once the applicant had explained the situation to the municipal office employees, the problem was resolved.
12. In a letter of 15 October 2001, in response to the applicant’s enquiry, the Nové Zámky municipal office informed her that, in the circumstances, it would not be possible to cancel Mr D.’s registration as permanently resident at her house, even when the 1998 Registration of Citizens’ Place of Residence Act came into force.
13. By a payment order of 22 January 2002, the Nové Zámky municipality charged the applicant’s husband a fee for the removal of household waste from their house. The amount of such fees depended on the number of persons registered as permanently or temporarily resident at a given dwelling. In the applicant’s case the fee was calculated on the basis of three persons being registered at her address. Once the applicant had explained the situation to the municipality employees, the problem was resolved.
14. The applicant submitted that official mail and other documents, including, in April 2005, a letter from the Nové Zámky municipal office, were being sent to Mr D. at her address, and that the police had come to her house searching for Mr D. on suspicion of having failed to make child maintenance payments.
15. The applicant further submitted that her marriage had been dissolved and that, in order to settle their property affairs, she and her former husband had put the house on the market. A prospective buyer withdrew his offer on learning that a third person was registered as permanently resident at the house and that there was no way of having that registration cancelled. The applicant continues to live in the house with her former husband.
16. Article 19 provides:
“1. Everyone has the right to the preservation of his human dignity and personal honour, and the protection of his good name.
2. Everyone has the right to protection against unwarranted interference in his private and family life ...”
17. Article 127, as in force since 1 January 2002, provides:
“1. The Constitutional Court shall decide complaints by natural or juristic persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.
4. The liability for damage or other loss of a person who has violated another person’s rights or freedoms within the meaning of paragraph 1 shall not be affected by the Constitutional Court’s decision.”
18. Article 154 (c) provides:
“1. International treaties on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms.
2. Other international treaties ratified by the Slovak Republic and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute.”
19. In decision no. I. ÚS 9/00 of 22 March 2000, the Constitutional Court expressed the view that ordinary courts were obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. The ordinary courts therefore had primary responsibility for upholding the rights and fundamental freedoms guaranteed by the Constitution or international treaties.
20. In case no. II. ÚS 5/02, a private individual sought to bring a complaint under Article 127 of the Constitution, challenging a generally binding municipal regulation as unconstitutional.
On 6 February 2002 the Constitutional Court declared the complaint inadmissible. In its decision it summarised the existing caselaw concerning the standing of private persons to bring proceedings for review of the constitutionality of legislation. The Constitutional Court held that any of the various forms of constitutional proceedings before it could only be commenced in a distinct set of proceedings and only on the motion of persons or bodies which had standing to initiate them. No other type of constitutional proceedings could be carried out within separate proceedings of another type. An examination of an individual human rights complaint could not entail a review of the constitutionality of legislation. This approach was in line with the Constitutional Court’s previous decision in case no. II. ÚS 40/00, and was followed in the later decision in case no. II. ÚS 238/03.
21. The protection of personal integrity is governed by the provisions of Articles 11 et seq. In so far as relevant, these provide:
“Article 11
Every natural person shall have the right to protection of his or her personal integrity, in particular his or her ... civil honour and human dignity, as well as privacy, name ...
...
Article 13
1. Every natural person shall have the right, inter alia, to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non-pecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
22. The Act was enacted on 29 November 1982, came into force on 1 January 1983 (section 23) and is still in force in Slovakia.
23. The purpose of the Act is to regulate and secure the proper and timely reporting and registration of the place of residence of Czechoslovak citizens on the territory of the Czechoslovak Socialist Republic (section 1).
24. Citizens are obliged to report the location and the start and end dates of their place of residence to the registration office (ohlasovňa) of the local national council (miestny národný výbor) (section 2(1)(a)).
25. Under section 3(3) an individual can permanently reside for the purposes of that Act only in premises which have a registration number, issued in accordance with special regulations.
26. Section 4(1) and (2) provide that all citizens are to register their permanent place of residence. For that purpose they are to submit to the registration office their identity card and a certificate to the effect that they are authorised to use the flat or other residential premises in question.
27. Pursuant to section 4(4) on reporting the location and start date of their permanent place of residence, citizens are obliged to report also the end date of their previous permanent place of residence.
28. In accordance with section 15(1)(b), a registration office is to cancel the registration of a citizen’s permanent place of residence where it has been shown that the registration was made erroneously on the basis of an invalid document.
29. The Act was enacted on 1 July 1998 and was intended to come into force on 1 January 2000. Its entry into force was subsequently postponed five times and is presently envisaged for 1 July 2006 (section 29).
30. The Act regulates the rights and duties of the citizens of the Slovak Republic in respect of reporting their place of residence, and the rights and duties of the competent authorities in the area of registration of citizens’ place of residence (section 1).
31. All citizens are obliged to report the location and start and end dates of their place of residence to the registration office of the municipality in which it is located (section 2(1)).
32. A permanent place of residence may only be established in a building or a part of a building which has a registration number, issued in accordance with special regulations, and which is intended for residential use. The registration of a permanent place of residence confers no right in respect of the building or in relation to its owner and is merely of an evidentiary nature (section 3(2) and (3)).
33. Section 3(8)(c) and (d) provide that, for registration purposes, citizens are to submit to the registration office a document attesting to their ownership of the premises or, as the case may be, the owner’s written consent to the registration.
34. Pursuant to section 5, citizens who are not in a position to show that they are authorised to stay in a flat or other residential premises are to report their stay to the registration office in the place where they are resident (kde sa zdržiava). In such cases, the municipality in question is considered to be the permanent place of residence. The address of the municipal office is to be used as the address for official purposes, such as the service of official mail.
35. A registration office is to cancel the registration of citizens’ permanent place of residence, inter alia, when they move and register as residing elsewhere (section 7(1)(a) in conjunction with section 10(d)).
36. A registration office is also to cancel the registration at the request of the owner of the premises if the citizen in question has no right of use in respect of them (section 7(1)(f)). In such cases the citizen whose registration has been cancelled is to be registered as residing in the municipality where the registration was cancelled (section 7(2)).
VIOLATED_ARTICLES: 8


ITEMID: 001-67454
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BRUNCRONA v. FINLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (six month period, non-exhaustion of domestic remedies);Violation of P1-1;Just satisfaction reserved
JUDGES: Nicolas Bratza
TEXT: 12. The late Olof Bruncrona’s heirs Marcus and Petter Bruncrona are Finnish nationals born in 1964 and 1967 and resident in Helsinki. The estate of Olof Bruncrona also acts as an applicant.
13. The applicants are the owners of the real property Karsby (registered as number 1:44; “the Karsby mansion”) in the village of the same name, currently part of the city of Tammisaari (Ekenäs).
14. The applicants claim ownership in the form of a right of permanent usufruct (in Finnish vakaa hallinta-oikeus; in Swedish ständig besittningsrätt) in respect of the property Bergö-Högholm (registered as number 1:0) in the village of the same name, also within the city limits of Tammisaari. The property comprises 165.4 hectares of water and some islands totalling 27.6 hectares. The islands originally belonged to the Swedish Crown (“Crown land”; kruununluontoinen maa, jord av krononatur).
15. Around the early 18th century the then owners of the Karsby mansion (kartano, säteri) were afforded the right to make use of the Bergö-Högholm islands in return for an annual levy (sääntönäisvero, stadga or stadgad ränta). The levy was collected from 1723 onwards. That arrangement was maintained by a decision of the Senate of the then Grand Duchy on 9 May 1862. The decision noted the following:
(In Swedish) “... så emedan dessa holmar äro påförde stadgade räntor och sedan medlet af förra århundradet opåtaldt innehafts ... pröve VI skäligt förklara desamma skola som hitintills förbliva under sagde säteri ... emot erläggande af de förre stadgade räntorne, hvarom anteckning likväl bör i jordeboken införas...”
(Translation into English) “... since these islands are subject to payment of an annual levy and have been made use of in an undisturbed manner since the middle of the last century ... we find it reasonable that they should remain, as heretofore, attached to the said mansion ... in return for payment of the annual levy, which should be entered into the land register ...”
16. When land taxation was abolished in 1924 the duty to pay a levy was replaced by a liability to pay State wealth tax (varallisuusvero, förmögenhetsskatt). Up to that year the levy had amounted to the equivalent of 1.29 euros (EUR) at today’s value.
17. The Bergö-Högholm property was formed through a supplementary land-parcelling procedure in 1975. At the same time it was registered as ordinary real property instead of Crown land, the State being indicated as its owner. According to the record of the land parcelling the owner description was incomplete, but the property was leased to the Karsby mansion. During the land-parcelling proceedings the owners of the Karsby mansion submitted that they did not question the State’s ownership. However, they claimed that they had a right of disposal (dispositionsrätt in Swedish).
18. The owners of the Karsby mansion made use of the Bergö-Högholm islands and the surrounding waters in an undisturbed manner until 1984, when the National Forestry Board granted fishing rights to a third party without Olof Bruncrona’s consent.
19. In 1985 Olof Bruncrona initiated proceedings with a view to having his ownership of the Bergö-Högholm property confirmed. In a judgment of 9 October 1987 the Tammisaari District Court (kihlakunnanoikeus, häradsrätten) found it established that the claimant and the previous owners of the Karsby mansion had been enjoying a right of permanent usufruct in respect of the property, that right having developed into ownership.
20. The District Court’s judgment was quashed by the Helsinki Court of Appeal (hovioikeus, hovrätten) on 22 November 1989. The appellate court found that the State had originally let the islands to the then owners of the Karsby mansion. This lease had been maintained in 1862. The State had thus never given up its ownership, but had simply tacitly consented to the Karsby mansion’s use of the property, initially subject to payment of a rent or levy and later subject to payment of wealth tax.
21. On 4 July 1990 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
22. The registration (lainhuuto, lagfart) of the State as the lawful owner of the property in 1991 was challenged by Olof Bruncrona in a new civil suit seeking to obtain confirmation of his right of permanent usufruct in respect of the Bergö-Högholm property and – should that right be deemed to have developed into ownership – confirmation of his ownership. Olof Bruncrona died on 24 May 1993 and his estate continued the lawsuit.
23. In a judgment of 18 October 1993 the District Court confirmed the applicants’ right of permanent usufruct and revoked the State’s title to the property.
24. The District Court’s judgment was quashed by the Court of Appeal on 21 March 1996 on grounds similar to those relied on in its earlier judgment. It found, inter alia, that:
(a) the ownership issue had been finally settled in the first set of proceedings;
(b) the first reference to the islands of Bergö and Högholm had appeared in a judgment book (tuomiokirja, dombok) of the County of Tenala in 1672, and a yearly payment had been made in respect of the islands;
(c) it could be deduced from the written material submitted to the Court of Appeal that the islands had been leased to the owner of the Karsby mansion in the 1720s;
(d) in the 1750s the owner of the Karsby mansion had attempted to transform the islands from Crown land into tax land (see “Relevant domestic law and practice” below), but the official list of land thus transformed – drawn up in 1769 – had not included the islands;
(e) in 1862 the Senate had decided that the islands were to remain under the control of the Karsby mansion in return for the prescribed payments, rather than the lease being put up for tender for a period of six years, as had been suggested in the light of the practice with regard to certain other plots of Crown land;
(f) the owners of the Karsby mansion had enjoyed undisturbed possession of the islands until 1984, when the State had granted a fishing licence to a third party in respect of the waters surrounding the islands; and
(g) a right of permanent usufruct in respect of Crown land continued to be recognised under Finnish law, on condition that there was a clear legal basis for the right.
25. The Court of Appeal concluded that originally the Crown had leased the islands to the Karsby mansion, and that the Senate had upheld that lease in its decision of 9 May 1862. The payment of rent (in Finnish vuokranmaksu) had later ceased and the mansion had paid tax in respect of the property, just as in respect of any other real property belonging to it. The Senate’s decision had not established any right of permanent usufruct in favour of the Karsby mansion, and the applicants had not presented any evidence of any other acquisition upon which such a right could be founded.
26. On 12 November 1997 the Supreme Court refused leave to appeal.
27. Meanwhile, following Olof Bruncrona’s death in May 1993, Marcus and Petter Bruncrona had declared that the Bergö-Högholm property formed part of the overall estate of the deceased for the purposes of the inventory of his possessions (perukirja, bouppteckning). Inheritance tax was levied inter alia in respect of the Bergö-Högholm property.
28. In a letter of 22 January 1998 the National Forestry and Park Service requested the applicants to vacate the Bergö-Högholm property. The applicants have apparently not yet complied with the request and no enforcement proceedings have been initiated to date. At the hearing before the Court on 14 October 2003 the Government argued that the letter in question amounted to the termination of the lease. The nature of the letter was disputed by the applicants.
29. Meanwhile, in 1984 the Private Forestry Association of Western Uusimaa (Nyland) had certified that the owners of the Karsby mansion had covered all the reforestation and other costs relating to the Bergö-Högholm islands and had also collected the full yield from the forestry activities carried out on the islands.
30. At the time of lodging their application with the Court the applicants were allegedly still obliged to pay wealth tax on the Bergö-Högholm property. In August 2001 the Government informed the Court that the taxation authorities would correct the relevant property register (maatilarekisteri, jordbruksregistret) with effect from 25 September 2001. The State would then be indicated as the rightful owner of the Bergö-Högholm property.
31. According to the Government, there were no regulations in force in the early 18th century governing the transfer of ownership of Crown land, nor was there any consistency in the contracts concerning such transfers. The scope of each contract and the rights contained therein had therefore to be determined in the light of the particular circumstances of each case. As a rule, it was not possible to transfer the ownership of Crown land before it had been transformed into privately owned land (perinnöksiosto, skatteköp). It was nevertheless possible to establish various rights relating to the enjoyment of the property and benefiting private individuals, municipalities or the Church. For example, the Crown could transfer a so-called permanent and exclusive right of possession in respect of the land, subject to a payment. Such a right required the land to be used for a specific purpose, and the Crown was entitled to regain possession of it either on payment of compensation or without having to redeem it. Over time the State’s title to the land could change into an ordinary one, whereas it was not, for example, possible to change the amount of the payment (stadga) collected from the holder of a right attaching to the property.
32. Provisions on the procedure for transferring Crown land to private individuals were later included in specific Acts of Parliament, such as Act no. 598/1965 (eräiden kruununluontoisten tilojen ja tilanosien järjestelystä annettu laki, lag om reglering av vissa lägenheter och lägenhetsdelar av krononatur). These Acts did not, however, govern all Crown land or all cases where a right of usufruct had been attached to it.
33. In the 1995 Land Code (maakaari, jordabalken 540/1995) the special characteristics of Crown land are only dealt with in the provisions concerning property registration, the aim being to ensure that the registered data correspond as far as possible to the existing situation. Title may now be established in respect of former Crown land. Any right of permanent usufruct, leasing right or other form of enjoyment of property may also be registered. A title of ownership may not be registered in respect of an estate which is already subject to a permanent right of possession (see section 18a of the Act on the Implementation of the Land Code (laki maakaaren voimaanpanosta, lagen om införande av jordabalken 541/1995).
34. Many scholars have supported the view that the permanent right of possession may be regarded as tantamount to actual ownership. Domestic courts have not accepted this view, preferring to focus on the purpose of the original transaction, even in cases where a right of usufruct was being enjoyed over a long period and in an undisturbed manner. Reference may be made to the Supreme Court’s judgment no. 1989:73.
35. It was possible to lease land belonging to the Crown, either for a certain period of time or indefinitely. Rights based on such lease contracts have not been transformed into ownership by means of specific legislation to that effect. Nor has the long-term de facto enjoyment of a property been considered to constitute a basis for ownership or a right of permanent usufruct in respect of land subject to a lease contract. The fact that the owner of the land has been passive or has tacitly accepted that another person uses the land does not entail a transfer of ownership. Transfer of ownership requires a transaction.
36. For taxation purposes, leased Crown land has been regarded as the tenant’s possession whenever he or she has been enjoying the right to use the property in spite of the State’s formal ownership. Thus, according to the Income and Capital Gains Tax Act (laki tulo- ja omaisuusverosta, lagen om skatt på inkomst och förmögenhet; Act no. 207/1920, section 14; Act no. 306/1924, section 14; and Act no. 888/1943, section 32):
“[t]he property for which taxes shall be paid includes the assets of the person liable to pay taxes, subject to the restrictions set out below.
The assets shall also include:
(1) any right of usufruct in respect of real property, whether or not its validity has been defined in time or it remains valid during the holder’s lifetime; any timber-felling rights; and any other right to make use of real property belonging to someone else.”
The existing Capital Gains Tax Act (varallisuusverolaki, förmögenhetsskattelagen 1537/1992) contains a comparable provision (section 9).
37. Anyone wishing to adjust the amount of their tax assessment must make a request to that effect in accordance with the Tax Assessment Procedure Act (verotusmenettelylaki, lagen om beskattningsförfarande 1558/95; Chapter 5).
38. According to the applicants, the right to perpetual usufruct did exist in the early 18th century and was explicitly established, given that transfer of ownership per se was prohibited in respect of Crown land. A right of usufruct was granted permanently until 1766, when the Royal Finance Collegium (in Swedish Kammarkollegiet) decided to let Crown land for a fixed period of six years following a tendering procedure in the form of an auction. As the right claimed by the applicants in respect of the Bergö-Högholm property had been established well before, the 1766 Decree was irrelevant to this case. The nature of the payment collected from the then owners of the Karsby mansion (in Swedish stadga or stadgad ränta) was fiscal, which is evidenced by the fact that it was entered in the column of land tax in the land register, and replaced by wealth tax in 1924.
39. The nature of Crown land is described in the relevant preparatory work on the 1995 Land Code (Government Bill 214/1996). Real property was historically divided into Crown land, exempted land and tax land (in Swedish krono-, frälse- och skattejord). Land tax was levied only on Crown land and tax land. The distinction between Crown land and tax land was abolished by the 1995 Land Code which entered into force on 1 January 1997. As is evidenced by section 18a of the Implementation Act (541/1995) and its drafting history, the concept of perpetual usufruct nevertheless remained recognised and may also be registered.
40. The preparatory work on the Implementation Act made clear that in examining historical rights to Crown land it must be established whether the Crown’s intention when preparing the relevant contract was to transfer ownership per se or to grant a right of usufruct in respect of the land. If evidence of a transfer of ownership cannot be provided, a right of perpetual usufruct is registered as a special right. For land registration purposes such a right is treated as a leasing right, and its holder may put it up as collateral (section 18a, subsection 4, of the Implementation Act). A right of perpetual usufruct is nevertheless more extensive than a leasing right in that it entitles its holder to use and possess the land at his or her sole discretion and prevents the landowner from having his or her ownership registered or putting the land up as collateral (section 18a, subsection 2, of the Implementation Act).
41. According to section 23(1) of the Rent on Land Act (maanvuokralaki, jordlegolagen 258/1966), which is applicable only to agreements made after 1 September 1966, a termination of lease must, if the addressee does not give his acknowledgment in writing, be effected in the presence of witnesses or in another demonstrable manner, and must specify the date on which the lease will end.


ITEMID: 001-126978
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SEGHETI v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicant was born in 1960 and lives in Cricova.
6. The applicant worked as a consultant for the Romanian Embassy in Moldova. On 12 April 2005 he was arrested by Moldovan police in Călăraşi, Moldova, on suspicion of having made false accusations against a third person. While the parties did not submit any copies of judgments concerning the applicant’s criminal proceedings, it follows from his correspondence that on an unknown date he was convicted to eight years’ imprisonment. He was placed in detention in prison no. 3 in Chişinău (previously known as prison no. 13) on 12 April 2005. On 5 October 2006 he was transferred to prison no. 15 in Cricova. On 6 August 2009 he was transferred to the Pruncul prison hospital (prison no. 16), where he received inpatient treatment until 18 August 2009 for hypertension and cardiac insufficiency.
7. The applicant described the conditions of his detention in prison no. 3 in Chişinău as follows. He was detained with thirty-nine other people in a 40 sq. m cell without ventilation or heating. Prisoners sometimes had to take turns to sleep and had to wait for a daily time-slot of two to three hours to obtain running tap water, which made hygiene issues in the prison a lot worse. The toilet was located in the cell itself and gave off a foul odour because there were no products to clean it with. The food was inedible.
8. He described the conditions of his detention in prison no. 15 as follows. On 5 October 2006 he was placed in a cell measuring 60 sq. m with twenty-six other people, which left very little space for each detainee. In the absence of any work or other activities, he had nothing to do and spent most of his time in the cell.
9. No bedding was given to the applicant and he had to ask his relatives to bring him some. The same was true of items of personal hygiene. He had to wear the same clothes he had been wearing when he was admitted to the prison, since no clothes were provided by the prison administration.
10. Water from a single tap was available during the day but not at night, and owing to the number of detainees in the cell it was not always possible to have access to it. Food was scarce and of very poor quality. The library contents were old and there were no reading materials about the Convention. The applicant also claimed that he had been given insufficient medical treatment in both detention facilities.
11. According to the Government, the space available to the applicant in various cells of prisons no. 3 and 15 always exceeded 4 sq.m. In particular, in prison no. 15 he was held in a detention block for working prisoners. The first cell he was detained in measured 61.6 sq.m and accommodated fifteen people. Shortly thereafter he was transferred to a cell measuring 30 sq.m, which accommodated three detainees. He was later moved to another cell measuring 24 sq.m, which also accommodated three detainees. All the cells had the correct number beds for detainees and were equipped with a water tap and a toilet.
12. The Government submitted a list confirming that the applicant was given medical assistance on a number of occasions in both prisons no. 3 and no. 15, including inpatient treatment for an ulcer in 2005.
13. The relevant parts of the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) concerning its visit to Moldova from 20 to 30 September 2004 read as follows (unofficial translation):
“54. The delegation visited five establishments run by the Ministry of Justice: prison no. 3 in Chişinău [and] correctional facilities nos. 4 and 15 in Cricova ...
55. In view of the economic situation in the country, the situation in the majority of prisons visited remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of the physical conditions of detention and regimes.
...
81. Correctional facility no. 15 has four detention blocks where the prisoners were divided into different units, according to whether they were classed as workers (units 2, 3, 4 and 6) or non-workers (units 1, 5, 7 and 8). Unlike correctional facility no. 4, despite the shabbiness of the premises, the establishment gave an overall impression of cleanliness and satisfactory upkeep. The laudable efforts made in this regard deserve to be highlighted. But again, much depended on the resources [available to the] prisoners for fitting out and renovating the cells.
Physical conditions ranged from acceptable to good on occasion. This was the case as regards unit 5 which held non-working detainees. Other dormitories – while remaining in an acceptable state of upkeep and cleanliness – presented difficult conditions there being, in some cases, fewer beds than occupants, windows with panes missing and a lack of basic amenities, certain essentials (such as mattresses, sheets, blankets or crockery) having been obtained through the charity of fellow-prisoners. Again, living space was often restricted in some of the dormitories, a situation which was partially alleviated by an open-door policy within the sections.
83. Except in the Lipcani Re-education Correctional Facility for Minors, where the efforts made in this respect regard are to be highlighted... the quantity and quality of prisoners’ food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both stock levels of food and the menus, confirm the credibility of these complaints. The delegation’s findings also confirm that in certain places (Colonies 3 and 4) the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is hardly surprising, given the general state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food. However, the Committee reiterates that this is a fundamental requirement of life that must be ensured by the State to persons in its care, and that nothing can exonerate it from such responsibility. Failure to meet this obligation is all the more unacceptable as, under legislation, working prisoners in the institutions visited contribute to the cost of feeding themselves and their fellow-prisoners. ...
85. In the light of the above, the CPT recommends that the Moldovan authorities:
...
- ensure that each prisoner in correctional facility nos. 4 and 15 has his own bed with the necessary bedding (mattress, sheets, blankets) and that all windows are glazed;
- remove the screens from the windows in the cells in unit 1 of correctional facility no. 15 to allow for the proper entry of natural light and fresh air;
- commence the refurbishment of the sanitary equipment in correctional facility nos. 4 and 15 and in the Re-education Correctional Facility for Minors forthwith, in the light of the remarks made above;
- immediately guarantee that inmates in Prison nos. 3, ... 4 and 15, as well as in all other affected prisons, receive adequate food served in accordance with the basic rules of hygiene;
- take all requisite measures to ensure adequate water, electricity and fuel supplies in correctional facility nos. 4 and 15, as well as in all other affected prisons; ...”
14. The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows:
“B. Conditions in places of detention
Institutions under the Ministry of Justice
30. Undoubtedly, progress has been achieved in improving conditions of detention. However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution.
31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food. ...”
15. In its report for 2009 (page 117 – “Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that:
“Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.”
16. In its report for 2010 (page 142 et seq. – “Conditions of detention”) the Human Rights Centre found, inter alia, that:
“... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in prison no. 17 in Rezina received 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice submitted information concerning the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million. The daily cost of feeding a detainee in 2010 was MDL 10.24 [approximately EUR 0.60], while the daily budgetary need was MDL 12.35. This statistic was often cited by prison administrations to justify why they were unable to provide detainees with meat and fish ...”
17. On 24 October 2003 Parliament adopted Decision no. 415-XV approving the National Human Rights Action Plan for 2004-2008. The Plan included a number of objectives to be achieved over a four-year period and was aimed at improving conditions of detention, including reducing overcrowding, improving medical treatment, introducing detainees to employment and encouraging their social reintegration, as well as carrying out training for personnel. Regular reports were to be submitted regarding the implementation of the Action Plan. On 31 December 2003 the Government adopted a decision on the principles of reorganisation of the prison system, together with the 2004-2013 Action Plan for the Reform of the Prison System, both having the aim, inter alia, of improving the conditions of detention in prisons.
18. On an unspecified date the Ministry of Justice produced a report entitled “Implementation by the Ministry of Justice of Chapter 14 of the National Human Rights Action Plan for 2004-2008, approved by Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights also produced a report on implementation of the National Action Plan. Both reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the Plan in Moldovan prisons, including prison no. 3 in Chişinău. The first of these reports stated, inter alia, that “as long as the aims and actions outlined in [the National Human Rights Action Plan] do not have the necessary financial support ... it will remain only a good intention of the State to protect human rights as described in Parliament Decision no. 415-XV of 24 October 2003 ...”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-77907
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HUDEC v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr František Hudec, is a Slovakian national who was born in 1949 and lives in Slovenská Ľupča. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is of fragile health. He was considered by the Social Security Administration (SSA) as partially incapacitated for work.
On 4 February 1998 the Banská Bystrica District Court (Okresný súd) found the applicant guilty of ill-treatment and causing bodily harm to a dependant (his son) contrary to Article 215 §§ 1 and 2 (b) and Article 221 § 1 of the Criminal Code. The applicant was sentenced to three years’ imprisonment. On 7 April 1998 the Banská Bystrica Regional Court (Krajský súd) upheld the judgment on the applicant’s appeal.
The applicant had had two previous criminal convictions: in 1991 for illtreatment of a dependant and in 1996 for causing grievous bodily harm.
On 10 July 1998, at 10 a.m., the applicant began his sentence in the Banská Bystrica prison. On his admission to the prison, the applicant refused to communicate with the prison personnel. At 5 p.m. he declared that he would not obey orders and prison rules and went on hunger strike. He explained his actions orally and later also in writing as a protest against his conviction, which he considered unjust.
On 13 July 1998 the applicant was brought to the prison doctor who recommended that he be examined by a psychologist.
On 14 July 1998 the applicant was examined by the prison psychologist who concluded that the applicant’s behaviour was of a primitive self-serving nature and had a pre-morbid psychopathic origin.
On 17 July 1998 the applicant was brought to the prison doctor for an examination in connection with his hunger strike. The circumstances of the applicant’s escort after that examination are disputed.
According to the applicant he was escorted by a single warder who, at around 11 a.m., insulted and severely assaulted him. As a result the applicant lost consciousness and only awoke four days later in the Trenčín prison hospital.
According to the Government the applicant was escorted by two warders, there had been no abuse and the loss of consciousness was a fiction.
On 20 July 1998 the applicant was again examined by a doctor. According to the Government, the applicant was moving around without assistance and came to the examination on foot. The applicant claims that he was unconscious and had to be wheeled on a gurney.
On 21 July 1998 the applicant was admitted to the psychiatric ward of the Trenčín prison hospital. According to the Government, when escorted to hospital, the applicant was able to walk on his own and without any assistance. The applicant disagrees. He further submits that on 22 July 1998 he complained to the head physician of physical ill-treatment.
As indicated in the report on his hospitalisation, the applicant initially refused to communicate, lay passively in bed and reverted to his original position when moved. On the second day of his stay in hospital the applicant started communicating, stopped his protest and claimed that he had been in a “special state” of which he remembered nothing. He was diagnosed with “combined personality disorder with hysteric manifestations” and received pharmacological treatment.
The applicant stayed in hospital until 22 September 1998 when he was moved to the Dubnica nad Váhom prison.
On 30 March 1999 the applicant was again admitted to a prison hospital in Trenčín. He was placed in the internal medicine unit where he was kept under observation, underwent examinations and tests and received pharmacological treatment. The applicant was released from hospital and was moved back to the Dubnica nad Váhom prison on 4 May 1999.
In 2000 the SSA found that the applicant was no longer partially incapacitated for work and withdrew the corresponding benefits. He appealed against this decision and, in connection with the appeal, had to undergo medical examinations on three occasions.
On 11 January 2000 the applicant requested release on parole, arguing that the serving of the sentence had negative effects on his health and on his relationship with his children. The prison authorities commented on the request in a report and concluded that release was not recommended.
On 26 April 2000 the District Court dismissed the request taking into account inter alia the above report. On 8 August 2000 the Regional Court upheld the decision on the applicant’s appeal.
On 8 January 2001 the applicant again unsuccessfully requested parole.
On 6 June and 9 July 2001, respectively, the Dubnica nad Váhom prison administration decided that the applicant was to pay the costs of the medical examinations carried out in connection with the abovementioned disability benefits appeal as well as the costs of his escort to hospital on 21 July 1998.
Further details concerning the serving of the applicant’s sentence are disputed.
Without submitting any documents in support of these allegations, the applicant claims that he was made to perform physical work; that he was often mocked and verbally abused by the prison personnel; that his correspondence, which included 46 letters from relatives, was regularly interfered with; that it was not possible for him to see his children; that he did not receive adequate medical care and his general health had deteriorated; and that his attempts to raise his situation with the public prosecution service went unanswered.
Relying on reports from the prison administration, the prison hospital and the public prosecution service, the Government claim that the applicant had performed no work at all; that he had avoided leisure activities; that there had been no incidences of ill-treatment; that the monitoring of the applicant’s correspondence had been carried out in accordance with the applicable rules; that none of his official correspondence had been interfered with; that while in prison the applicant had sent no more than two private letters and that there was no indication that they had been interfered with in any way; that the prison authorities had encouraged the applicant on several occasions to contact his children; that his visits to them could not take place because the applicant had not been prepared to pay the costs of his transfer to the children’s home where they were placed; that he had been examined numerous times by an internist, a neurologist and a psychiatrist; that he had consulted the prison doctor approximately 180 times; that he had been provided with all necessary medicines and medical aids; that he had contacted the prosecution service on two occasions complaining of the inactivity of his lawyer and the report in reply to his request for release on parole; and that he had never made any other complaints to the prosecution service. None of the reports submitted contained any indication that the applicant had complained of any abuse or that any abuse had been established.
On 10 July 2001 the applicant was released after having served his sentence.
The applicant appealed against the decisions of 6 June and 9 July 2001 to the Director General of the Prison Administration. The Director dismissed his appeals as unfounded on 25 July and 9 October 2001 respectively. As regards the escort to hospital on 21 July 1998, the Director found that it had been prompted by the applicant’s selfinflicted health condition (the hunger strike) and that his allegations about injuries caused by a beating were unsubstantiated.
After his release, the applicant lodged a detailed complaint with the Director about the conditions of his imprisonment and his alleged illtreatment.
On 9 August 2001 the Director dismissed the complaint, finding wholly unsubstantiated the applicant’s allegations of the beating and subsequent loss of consciousness on 17 July 1998, which was alleged to have been the reason for his hospitalisation. The medical attention given to the applicant in the prison hospital and elsewhere during his imprisonment had been adequate. No breach of any regulation had been established. Similar conclusions were drawn by the Ministry of Justice in their letter of 14 January 2002 in response to the applicant’s renewed complaints.
The lex generalis governing execution of prison sentences is the Prison Sentences Execution Act (Law no. 59/1965 Coll., as amended).
Supervision of legality in prisons is regulated by its Chapter (Oddiel) 10. It is primarily carried out by the public prosecution service (section 44), the courts (section 45) and the National Council of the Slovak Republic (section 47). Public prosecutors, judges and members of parliament have inter alia unrestricted access to prisons and the right to speak with prisoners without a third person being present.
Subsidiary supervision is entrusted to religious organisations and citizens’ associations (section 48).


ITEMID: 001-5455
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DENIMARK LIMITED AND 11 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: A.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are all connected with the firearms industry. A list of the applicants is annexed to the present decision. They are represented before the Court by Elborne Mitchell, Solicitors, London.
The first applicant, Denimark Limited, traded as Leicester Shooting Centre. It operated an indoor shooting complex with two shooting ranges, a clubroom and a retail shop. Its primary business activity was providing facilities for handgun shooting, although the shooting ranges are suitable for small bore rifles as well as handguns. The Government’s announcement that it intended to introduce legislation prohibiting the possession of handguns badly affected the first applicant’s business and reduced its profitability. It has redundant stock in respect of which it is not entitled to compensation under the 1997 Firearm Amendment legislation: the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below). It estimates the reduction in value of its goodwill to be in the region of £50,000, and its loss of future profit to be approximately £40,000 per annum (gross). In addition, capital assets worth approximately £45,000 were rendered redundant by the 1997 Amendment Acts.

The second applicant, Dunmore of Abingdon Limited, operated a shop selling handguns, rifles, clay and game shot guns, air rifles, air pistols and accessories. It also operated an indoor 25-metre handgun range which it ran as a commercial club, and a country clothing shop. After the Government’s announcement that it intended to introduce legislation prohibiting the possession of handguns, the second applicant’s business started to decline and sales and profits in the gun shop fell considerably. The shooting range is suitable only for handguns, as rifles need a longer distance (100 metres), muzzle loading pistols need an outdoor range due to the smoke and fire hazard, and shotguns cannot be used indoors. By August 1997, pistol club membership had declined from 500 to 150, the number of employees had been reduced from 12 to 8, and business hours had been reduced from seven to five days per week. The second applicant envisaged closing the range by the end of September 1997. It estimates its loss of future profits at £188,000 per annum (gross), with a substantial reduction in the value of its goodwill. In addition, capital assets worth approximately £50,000 were rendered redundant by the 1997 Amendment Acts.
The third applicant, Graham Gill, is a sole trader dealing in the sale of handguns, specialist accessories and equipment under the name Greenland Firearms. He also provides specialist firearms training in handgun techniques, and specialist gunsmithing and repair works. By August 1997, the level of business had been reduced by 95%, with consequent reductions in the value of the goodwill and the future income and profit of the business. The third applicant had invested considerable sums in setting up the business, building secure storage areas, installing alarm systems and providing a test range. He estimates the value of his redundant capital investment at £25,000, and his loss of future profit at £45,000 per annum (gross).
The fourth applicant, Tim Hannan, was engaged in the manufacture, sale (both retail and wholesale), import and export of handguns and accessories. Trade in handguns and accessories represented approximately 80% of his turnover. The fourth applicant also manufactured ammunition and sold rifles, reloading equipment components, and various accessories including books. By August 1997, sales had been reduced significantly and the number of employees was reduced from nine to five. The fourth applicant estimates his redundant investment in plant and machinery (primarily equipment for making handguns and ammunition) at £185,000, and the reduction in value of the goodwill of the business at £1,624,000.
The fifth applicant is Robert Hardesty, trading as Grove Small Arms Club. The sixth applicant is Grove Smallarms, a partnership between Mr Hardesty and his wife, Barbara Hardesty. The fifth and sixth applicants trade from the same premises. The fifth applicant’s club is for handgun shooting. The sixth applicant operates a gun shop with 90% of its business selling handguns, ammunition and accessories. As a consequence of the reduction in club membership following the Government’s decision to prohibit the possession of handguns, the fifth and sixth applicants have reduced their business hours and membership of the shooting range has dropped from 560 to 270. The fifth applicant’s business is no longer viable. He estimates the reduction in value of goodwill at £15,000, redundant capital investment at £32,000, and the loss of future profit at £31,000 per annum (gross). The sixth applicant estimates the reduction in the value of its goodwill at £20,000, its redundant capital investment at £35,000, and its loss of future profit at £31,000 per annum (gross). It is unable to diversify into the shotgun or rifle markets as there are already well-established gun shops in the locality which specialise in these markets.

The seventh applicant, Howitzer Products Limited, specialises in the manufacture of ammunition for handguns. Approximately 80% of the seventh applicant’s business depended upon the trade in handguns. Between the entry into force of the First Amendment Act and August 1997, the number of people employed by the seventh applicant halved and the level of sales was reduced significantly. The seventh applicant estimates its loss of future profit at £12,000 per annum (gross) and the reduction in the value of its goodwill at £50,000, in addition to significant redundant capital expenditure.
The eighth applicant, Leeds Firearms International Limited, operated a shop selling handguns, accessories and reloading equipment, from the premises of a commercial gun club and shooting range. It also operated a mail order business. 95% of the eighth applicant’s business involved the sale of handguns. The eighth applicant ceased trading in December 1996, when it became clear that the business would no longer be viable after the entry into force of the First Amendment Act. It estimates its loss of future profit at £70,000 per annum (gross). It suffered a substantial reduction in the value of its goodwill, and significant capital investment was rendered redundant.
The ninth applicant, Lincolnshire Shooting Centre, is a partnership between a married couple, Douglas and Margaret Purdy. The ninth applicant runs a shooting centre, gun shop, rifle and handgun club, and an indoor handgun shooting range. The range is suitable only for handguns. By August 1997, weekly sales at the shop had fallen from £2,500 to £250, and the ninth applicant anticipated that it would have to cease trading in the near future. It estimates the reduction in the value of its goodwill at £495,000, its redundant capital investment at £20,000, and its loss of future profit at £10,000 per annum (gross).
The tenth applicant is Laurence Tully, trading as The Barbican Armoury. He is a handgun dealer, runs a shooting club, and repairs handguns. The business was worth £110,000 as a going concern before the prohibition on handguns. By October 1996, the goodwill of the business had been rendered valueless. Club membership was reduced to 70% by 1 February 1997, the membership renewal date. By August 1997, range attendance had been reduced by 40%, and turnover had fallen by 60%. Significant capital investment was rendered redundant, and the tenth applicant faced an extensive and costly programme of modifications to adapt facilities for the use of black powder muzzle loading guns, which were not affected by the 1997 Acts. He estimates his loss of future profits at £17,280 per annum (gross).

The eleventh applicant, Viking Arms Limited, is a supplier and distributor of handguns, ammunition and accessories, specialising in revolvers. It was the sole wholesale distributor for some of the world’s largest manufacturers of handguns and their accessories, such as holsters. The eleventh applicant’s premises were built specifically for secure storage of firearms and ammunition and have been rendered virtually unusable. The business was rendered virtually worthless by the 1997 Acts. The eleventh applicant estimates the reduction in the value of its goodwill at £2,000,000, its redundant capital investment at £300,000, and its loss of future profit at £445,000 per annum (gross).
The twelfth applicant is Jeffrey Wilkinson, trading as Wilkinson Custom. He was a specialist manufacturer of custom-made competition pistols, revolvers and accessories, having spent five years training to manufacture handguns. The twelfth applicant started trading in 1994, and made a gross profit of £5,000 in 1995/96. He estimates the reduction in the value of his goodwill at £25,000, his redundant capital investment at £20,000 and his loss of future profit at £25,000 per annum (gross).
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million. The applicants have received no compensation for the reduction in value of their businesses.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.