ITEMID: 001-58594
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF V. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Independent tribunal);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. The applicant was born in August 1982.
On 12 February 1993, when he was ten years old, he and another ten-year-old boy, “T.” (the applicant in case no. 24724/94), had played truant from school and abducted a two-year-old boy from a shopping precinct, taken him on a journey of over two miles and then battered him to death and left him on a railway line to be run over.
8. The applicant and T. were arrested in February 1993 and detained pending trial.
9. Their trial took place over three weeks in November 1993, in public, at Preston Crown Court before a judge and twelve jurors. In the two months preceding the trial, each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “child witness pack” containing books and games.
The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In the courtroom, the press benches and public gallery were full.
The trial was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants' age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day (10.30 a.m. to 3.30 p.m., with an hour's lunch break), and a ten-minute interval was taken every hour. During adjournments the defendants were allowed to spend time with their parents and social workers in a play area. The judge made it clear that he would adjourn whenever the social workers or defence lawyers told him that one of the defendants was showing signs of tiredness or stress. This occurred on one occasion.
10. At the opening of the trial on 1 November 1993 the judge made an order under section 39 of the Children and Young Persons Act 1933 (see paragraph 32 below) that there should be no publication of the names, addresses or other identifying details of the applicant or T. or publication of their photographs.
On the same day, the applicant's counsel made an application for a stay of the proceedings, on the grounds that the trial would be unfair due to the nature and extent of the media coverage. After hearing argument, the judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held. He referred to the warning that he had given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom.
11. Dr Bentovim, of the Great Ormond Street Hospital for Children, interviewed the applicant and his parents on behalf of the defence in September 1993, although he did not give evidence at the trial. He found that V. showed post-traumatic effects and extreme distress and guilt, with fears of punishment and terrible retribution. V. found it very difficult and distressing to think or talk about the events in question and it was not possible to ascertain many aspects. The doctor found that he showed evidence of immaturity, behaving in many ways like a younger child emotionally, and recommended that, whatever happened, he was likely to need therapeutic care in a residential context.
12. During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew that what they were doing was wrong (see paragraph 29 below).
The court heard evidence from Dr Susan Bailey, a consultant psychiatrist from the Adolescent Forensic Service of the Home Office, who had written a report on the applicant on behalf of the Crown. Dr Bailey gave evidence that the applicant presented as a child of average intelligence, and would have been able in February 1993 to distinguish between right and wrong. He would have known that it was wrong to take a child from his mother, injure him and leave him on a railway line. She had seen the applicant on a number of occasions. On each occasion, he had cried inconsolably and shown signs of distress. He was not able to talk about the events in issue in any useful way.
The prosecution also called the headmistress at the school attended by the two boys. She stated that from the ages of four and five children were aware that it was wrong to strike another child with a weapon. She stated that T. and the applicant would have been aware that what they were doing was wrong. Another teacher gave evidence to the same effect.
13. In addition, evidence was given by persons who had witnessed T. and the applicant in the shopping centre from which the two-year-old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with T. and the applicant were replayed in court. Neither the applicant nor T. gave evidence.
14. In his summing-up to the jury the trial judge noted that witnesses had arrived in court in a blaze of publicity and many had faced a bevy of photographers. They had had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had had difficulty in speaking audibly. This was one of the factors to be borne in mind in assessing their evidence. He instructed the jury, inter alia, that the prosecution had to prove beyond reasonable doubt, in addition to the ingredients of the offences charged, that the applicant and T. knew that what they were doing was wrong.
15. On 24 November 1993 the jury convicted T. and the applicant of murder and abduction. Neither applicant made any appeal to the Court of Appeal against his conviction.
16. Following their conviction, the judge modified the order under section 39 of the 1933 Act (see paragraph 10 above) to allow the applicant and T.'s names, but no other details, to be published. The following day – 25 November 1993 – their names, photographs and other particulars were published in newspapers throughout the country. On 26 November 1993 the judge granted an injunction restraining, inter alia, the publication of the addresses where the boys were being detained or any other detail which could lead to information about their whereabouts, care or treatment being revealed.
17. In January 1995 the applicant was interviewed again by Dr Bentovim for the purposes of the judicial review proceedings (see below). The doctor noted, inter alia, that V. was suffering from very high levels of fear that he would be attacked or punished for his actions. When the trial was mentioned, the applicant had described his sense of shock when he had seen the public being let in and his considerable distress when his name and photograph were published. He had been terrified of being looked at in court and had frequently found himself worrying what people were thinking about him. Most of the time he had not been able to participate in the proceedings and had spent time counting in his head or making shapes with his shoes because he could not pay attention or process the whole proceedings. He did not follow when he heard his and T.'s interviews with the police being played in court and he recalled crying at that time.
Dr Bentovim commented that:
“In my view, because of his immaturity, and his age when the act was committed and when he was tried, [V.] did not have the capacity to fully take in the process of the trial except for the major actions for which he was responsible. ... [W]hether ... he had an understanding of the situation such that he could give an informed instruction to his lawyer to act on his behalf ... is, in my view, very doubtful given his immaturity. Although he was chronologically over the age of ten at the time of his action, I am in no doubt that he was less mature than this as far as psychological or emotional age was concerned.”
18. In a report by Dr Bailey (see paragraph 12 above) dated November 1997, it was noted that until the trial the events during the offence were with the applicant ninety-eight per cent of the time and especially every night during the trial. It took him twelve months to get over the trial itself. He still thought of it every night. He had been most scared when in the magistrates' court on the first occasion. After the first three days at the Crown Court he had felt all right because he played with his hands and stopped listening. He had to stop listening because they played the police interviews with him and T. in front of everyone as if they were shouting it out. The press were laughing at him and he could tell from the faces of the jury that they would find him guilty. He still did not understand why the trial had been so long.
19. In a report on the applicant dated February 1998, Sir Michael Rutter, Professor of Child Psychiatry at the Institute of Psychiatry, University of London, observed:
“I have also been asked to comment on the likely mental and emotional effects on children in general, and on [V.] in particular, of the prolonged trial process being in public. In my opinion there are two negative aspects of the trial process as they apply to children of [V.'s] age. First, one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed. A child of ten has many years of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process. In particular, when children have committed a serious act, such as killing another child, it is most important that they are able to come to terms with the reality of what they have done and with all that that means. That is not possible at a time when a trial is still under way and guilt has still to be decided by the court. Thus, I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as ten or eleven (or even older).
The fact that the trial process is held in public and that the negative public reactions (often extreme negative reactions) are very obvious is a further potentially damaging factor. While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime, this is made more difficult by the public nature of the trial process ...”
20. Following the applicant and T.'s conviction for murder, the judge sentenced them, as required by law, to detention during Her Majesty's pleasure (see paragraph 36 below).
He subsequently recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the “tariff” – see paragraphs 40-42 below). He commented that he could not determine the boys' relative culpability, and stated:
“Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required.
Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others.
... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been eighteen years.
However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities.
In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is eight years... . Eight years is 'very very many years' for a ten or eleven year old. They are now children. In eight years' time they will be young men.”
21. The Lord Chief Justice recommended a tariff of ten years. The applicant's representatives made written representations to the Home Secretary, who was to fix the tariff period.
22. By a letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of twenty-five years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations.
The applicant's solicitors were given an opportunity to submit further representations to the Secretary of State.
23. By a letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated, inter alia:
“In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice.
The Secretary of State takes fully into account the fact that you were only ten years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult.
The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant. The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion.
The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be eight years, and ten years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been eighteen years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of twenty-five years and not eighteen years as suggested by the trial judge.
For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of fifteen years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases.
The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate.”
24. Dr Bentovim's January 1995 report (see paragraph 17 above) stated that the applicant had been distraught when told of the eight and ten year recommendations. When he was informed that a fifteen-year tariff had been fixed, he was devastated. He made comments that he would never be let out and had a preoccupation that he was like Myra Hindley. He felt that his life was no longer worth living and there was no point going on.
25. The applicant instituted judicial review proceedings challenging, inter alia, the tariff which had been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994.
26. On 2 May 1996 the Divisional Court upheld part of the applicant's claims. On 30 July 1996 the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997 the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which even in exceptional circumstances treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and that, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his decision had been rendered unlawful (see further paragraph 43 below). The tariff set by the Secretary of State was accordingly quashed.
27. On 10 November 1997 the Secretary of State informed Parliament that, in the light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure, pursuant to which, inter alia, he would keep the tariff initially set under review in the light of the offender's progress and development. The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff.
28. At the time of the adoption of this judgment, no decision has been taken in respect of the applicant's tariff. The Government in their memorial informed the Court that although the applicant V. had submitted representations regarding the appropriate length of tariff, similar representations were still awaited in respect of T., and the Home Secretary was in addition seeking independent psychiatric advice regarding both detainees.
29. Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session 1992-93, Her Majesty's Stationary Office). At the time of the applicant's trial, a child between the ages of ten and fourteen was subject to a presumption that he did not know that what he was doing was wrong (doli incapax). This presumption had to be rebutted by the prosecution proving beyond reasonable doubt that, at the time of the offence, the child knew that the act was wrong as distinct from merely naughty or childish mischief (C. (a minor) v. the Director of Public Prosecutions [1996] Appeal Cases 1).
The doli incapax presumption has since been abolished with effect from 30 September 1998 (section 34 of the Crime and Disorder Act 1998).
30. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under eighteen years must be tried summarily in the magistrates' court, where the trial usually takes place in the specialist youth court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury.
31. Where a child is tried in the youth court, section 49 of the 1933 Act imposes an automatic prohibition restraining the media from reporting the child's name or personal details or from publishing his photograph or any other information which might lead to his identification. The court has a discretion to dispense with the restriction following conviction if it considers it in the public interest to do so.
32. Where a child is tried in the Crown Court, there is no restriction on the reporting of the proceedings unless the trial judge makes an order under section 39 of the 1933 Act, which provides:
“(1) In relation to any proceedings in any court ... the court may direct that –
(a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court.
(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine ...”
This provision was extended by section 57(4) of the Children and Young Persons Act 1963 to cover sound and television broadcasts.
The Court of Appeal interpreting section 39 has held that, since Parliament intentionally distinguished between trial in a youth court, where there is a presumption against publicity, and trial in the Crown Court, where the presumption is reversed, there should be a good reason for the making of an order under section 39 of the 1933 Act (R. v. Lee (a minor) 96 Criminal Appeal Reports 188).
33. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead.
34. In the case of Kunnath v. the State ([1993] 1 Weekly Law Reports 1315), the Privy Council quashed the conviction of an uneducated peasant from Kerala in southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter. The Privy Council stated, inter alia:
“It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. The basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him.”
35. In England and Wales, adults convicted of murder are subject to mandatory life imprisonment (Murder (Abolition of Death Penalty) Act 1967). Adults convicted of certain violent or sexual offences, for example manslaughter, rape or robbery, may be sentenced to life imprisonment at the discretion of the trial judge, if he or she considers that (i) the offence is grave and (ii) there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.
36. Offenders under the age of eighteen who are convicted of murder are automatically to be detained during Her Majesty's pleasure, in accordance with section 53(1) of the Children and Young Persons Act 1933 (as amended), which provides:
“A person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct.”
Until the age of eighteen a child or young person detained during Her Majesty's pleasure will be held at a children's home or other institution providing facilities appropriate to his age. At the age of eighteen the detainee becomes liable to be transferred to a Young Offenders' Institution and, at the age of twenty-one, to detention in the same institution as an adult sentenced to life imprisonment for murder.
37. At the time of the applicant's conviction, the effect of the sentence of detention during Her Majesty's pleasure was that the child or young person was detained for an indeterminate period, the duration of which was wholly within the discretion of the Home Secretary. The Secretary of State had a discretion to refer the case of a detained child to the Parole Board for its advice and, if so advised by the Parole Board, had a discretion to decide to order the child's release (Criminal Justice Act 1991 (“the 1991 Act”), sections 35(2) and (3) and 43(2); see the speech of Lord Browne-Wilkinson in the House of Lords, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407 at p. 492A-F, hereafter “Ex parte V. and T.”).
38. On 1 October 1997 section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgments of the European Court in the Hussain and Singh cases (Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 252, and Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired (see paragraphs 40-42 below), it shall be for the Parole Board, and not, as previously, for the Secretary of State, to decide whether it is safe to release on licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before the age of eighteen.
39. A person detained during Her Majesty's pleasure who is released on licence is liable to be recalled throughout his or her life, subject to the decision of the Parole Board.
40. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T., op. cit., at pp. 492G-493A).
41. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.
42. A different regime, however, applies under the 1991 Act to persons detained during Her Majesty's pleasure or serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).
43. In the judicial review proceedings brought by the applicant (Ex parte V. and T., op. cit.), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise in respect of sentences of detention during Her Majesty's pleasure.
Lord Steyn held:
“The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.”
Lord Hope held:
“But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ...
If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...”
Lord Hope also commented on the imposition of a tariff on a child offender:
“A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.”
Lord Goff stated, inter alia:
“... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful.
In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment ...”
44. On 10 November 1997 the Secretary of State announced that, in the light of the House of Lords' decision, he would adopt the following policy in respect of fixing the tariff for young offenders convicted of murder and detained during Her Majesty's pleasure:
“I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind; I shall continue to invite representations on the prisoner's behalf and give reasons for decisions.
Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers.
When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate ...”
45. The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. They provide, as relevant:
“4. Age of criminal responsibility
4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.
Commentary
The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.).
Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally.
...
8. Protection of privacy
8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
...
17. Guiding principles in adjudication and disposition
17.1 The disposition of the competent authorities shall be guided by the following principles:
(a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
...
(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.
...
Commentary
...
Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person.
...”
46. This treaty (hereafter “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.
Article 3 § 1 of the UN Convention states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 37 (a) and (b) provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ... ”
Article 40 provides, as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end ... the States Parties shall, in particular, ensure that:
...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
...
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
...”
47. In its concluding observations in respect of the United Kingdom (CRC/C/15/add. 34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the UN Convention stated, inter alia:
“35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ...
36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...”
48. The Covenant provides in Article 14 § 4, which broadly corresponds to Article 6 of the European Convention, that:
“In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”
49. The above recommendation, adopted by the Committee of Ministers on 17 September 1987, states, inter alia:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors, and that the latter need specialised interventions and, where appropriate, specialised treatment, based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child;
Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ...;
...
Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules),
Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
...
4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action;
5. to avoiding committing minors to adult courts, where juvenile courts exist;
...
8. to reinforcing the legal position of minors throughout the proceedings ... by recognising, inter alia:
...
the right of juveniles to respect for their private lives;
...”
50. The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many eastern European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and Andorra; and eighteen in Spain, Belgium and Luxembourg.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-4
6-1
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-104623
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KUPPINGER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Angelika Nußberger;Ganna Yudkivska
TEXT: 4. The applicant was born in 1953 and lives in Heidelberg.
5. The applicant is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with the child. In 2004 the applicant unsuccessfully attempted to establish contact with his son.
6. On 19 May 2005 the applicant lodged a request for the regulation of contact rights with the Frankfurt/Main District Court (Amtsgericht). On 29 May 2005 the court served the request on the mother and requested the Youth Office to submit comments, which were submitted on 29 August 2005, following a reminder by the court. On 7 October 2005 the court scheduled a hearing for 27 October 2005, which was postponed at both parties’ request to 1 December 2005.
7. Both parties having agreed to institute supervised contacts, the District Court ordered the Youth Office to name, within a time-limit of one month, a suitable institution to supervise the visits. It further decided to issue a decision on contact rights after having been informed about the concrete dates for contacts.
8. Between October 2005 and May 2006 the Youth Office unsuccessfully attempted to mediate an agreement on a suitable institution.
9. On 31 May 2006 the District Court informed the parties that it would attempt to find a suitable institution on its own motion. On 6 June 2006 the District Court ordered that contact visits should be supervised by a centre for psychological counselling. Between July and October 2006, five supervised contacts took place.
10. On 30 October 2006 the District Court requested the counselling centre to submit a report. On 5 December 2006 the Youth Office, following a further reminder by the court, submitted a report by the counselling centre dated 9 November 2006. Both the Youth Office and the counsel centre did not have any objections to contacts between father and son. The next step should be to limit the supervision to the accompanied handover of the child. However, having regard to the mother’s opposition, the Youth Office was not in a position to propose how contact rights should be established.
11. On 12 December 2006 the District Court informed the parties of its intention to hear expert opinion on the regulation of access rights and invited the parties to submit comments within two weeks. On 22 December 2006 and 11 January 2007 new counsel for the applicant requested to be granted access to the case file and asked the court to allow submissions within 14 days after the receipt of the case-file that was returned by letter of 16 January 2007. On 5 February 2007 the applicant’s counsel submitted her comments.
12. On 8 February 2007 the District Court commissioned a psychological expert and ordered her to submit the expert opinion within three months.
13. On 5 March 2007 the applicant requested the District Court to regulate further contact rights by interim order. On 27 March 2007 the District Court rejected the applicant’s request on the grounds that a regulation of contact rights had to be based on the result of the expert examination. It pointed out that the expert had declared that she would be able to terminate her report by the end of April, if both parents attended the proposed meetings.
14. On 29 March 2007 the Youth Office declared that it did not have any objections to further contacts. On 12 April 2007 the applicant requested the applicant to hold a hearing on his interim request.
15. On 19 April 2007 the District Court scheduled a second hearing for 16 May 2007. On 16 May 2007 the District Court heard the Youth Office, the person accompanying the visits and the expert. The applicant declared that he refused being examined by the expert.
16. By interim order of 22 May 2007 the District Court, following expert recommendation, ordered that supervised visits should take place every Thursday afternoon. Between 14 June and 12 July 2007 five contact visits took place. The applicant having lodged a complaint about the supervisor, the latter declared that he was not available to supervise further contacts.
17. On 8 June 2007 the applicant declared that he was now ready to be examined by the expert. On 9 July 2007 the expert informed the court that the applicant had failed to attend the arranged meeting. On 12 July 2007 the applicant submitted that he had appeared in time, but that the expert had not opened the door. He requested the court to terminate the examination without his cooperation, as he had lost confidence in the expert.
18. On 19 July 2007 the applicant had his last contact with his son.
19. On 31 July and 14 August 2007 the applicant requested the District Court to impose enforcement measures on the mother, who objected to further contacts. On 24 August 2007 the District Court, in separate proceedings, imposed enforcement measures on the mother.
20. On 26 July 2007 the District Court requested the expert to terminate the examination. On 7 September 2007 the expert submitted her report, in which she noted that the parents were unable to cooperate and recommended the continuation of supervised visits. On 7 September 2007 the District Court served the expert opinion on the parties and ordered the Youth Office to propose an institution which could arrange supervised visits. On 5 October 2007 the court asked the parties if a suitable institution had been found. In October and November 2007 the applicant, following several extensions of the time-limit set, submitted extensive comments.
21. On 22 November 2007 the District Court held a third hearing. While the expert recommended the continuation of supervised contacts, the Youth Office declared that it was difficult to find an institution to supervise the contacts and recommended a suspension of contact rights.
22. On 4 December 2007 the District Court informed the parties about its intention to appoint a curator ad litem to represent the child’s interests. On 6 and 13 December 2007 the parties objected. On 20 December 2007 the court appointed a curator ad litem and asked her to submit comments within two months. Both parties lodged complaints against the appointment which were withdrawn on 7 and 12 February 2008, respectively.
23. Between February and April 2008 the curator informed the court about her attempts to institute contact visits. During the following months, the curator and the Youth Office attempted to induce the parties to conclude a parental agreement on the modalities of supervised contacts.
24. On 8 April 2008 the applicant requested the District Court to issue a decision. On 15 May 2008 the District Court informed the parties that the parents had concluded an agreement on contacts which should be executed within a short period of time. On 19 May 2008 the District Court informed the parties that the proceedings were suspended as long as the agreement on contact rights was executed. On 6 June 2008 the Youth Office informed the court that supervised visits could be envisaged for mid-August.
25. On 26 August 2008 the applicant requested the District Court to order the Youth Office to refrain from issuing legal opinions and to respect binding court orders. On 12 September 2008 the District Court rejected the request.
26. On 11 February 2009 the institution which had been commissioned to supervise the contacts proposed a first contact for 28 February 2009. On 24 February 2009 the mother informed the court that she objected to a further cooperation with the supervising institution.
27. On 26 February 2009 the curator ad litem submitted a report on her activities since January 2008. Upon request, the court extended the time limit for the Youth Office to 31 May 2009 and for the mother to 28 April 2009. On 25 May 2009 the Youth Office submitted the final report by the supervising institution dated 7 March 2009, according to which the mother had failed to support the exercise of contact rights.
28. On 7 May 2009 the mother requested the court to hold a hearing. On 23 June 2009 the applicant, represented by new counsel, filed extensive submissions, and requested the court to issue an interim order and to schedule a hearing. On 30 July 2009 the District Court scheduled a hearing for 3 September 2009.
29. On 6 August 2009 the applicant, represented by counsel, lodged a constitutional complaint, complaining about the length of the proceedings and about the lack of an effective remedy.
30. On 17 August 2009 the applicant requested the court to re-schedule the hearing because of his holiday plans. On 24 August 2009 the court postponed the hearing to 24 September 2009. On 3 September 2009 the court postponed the hearing to 15 October 2009 in order to take into account the absence of the competent person in the Youth Office. On 21 September 2009 the Court of Appeal declared the applicant’s complaint against the postponement inadmissible. On 24 September 2009 the District Court, upon the mother’s request, further postponed the hearing to 26 October 2009. On 2 October 2009 the District Court postponed the hearing to 29 October 2009 because of the absence of the curator ad litem.
31. In the meantime, on 13 October 2009 the Court of Appeal rejected the applicant’s complaint against the further postponement, as the scheduling of a hearing was not subject to a legal remedy. With regard to the length of the proceedings, the Court of Appeal found as follows:
“In the instant case, the numerous postponements have created a situation which is unacceptable in the light of the requirement to expedite the proceedings ... Contact proceedings have been pending since 2005. Contacts have taken place sporadically only; a final decision has not been given. On 23 June 2009 the applicant requested the issue of an interim order. The repeated postponements of the hearing cause a factual delay which amounts to a denial of justice or a suspension of the proceedings.”
The Court of Appeal noted, however, that it was not competent to order the District Court to hold the hearing on a specific date.
32. On 15 October 2009 the District Court postponed the hearing upon the curator’s request to 2 November 2009. On 2 November 2009 the hearing took place, on 9 November 2009 the court heard the child.
33. On 21 December 2009, following further submissions filed by the parents and by the Youth Office, the District Court suspended the applicant’s contact rights for one further year. The District Court considered that the child, who last saw his father two and a half years before, and had been burdened by the proceedings, had to be given time, inter alia to cope with his entry into school.
34. On 5 January 2010 the applicant lodged a motion with the District Court to amend its decision of 21 December 2009 with respect to the father’s right to be informed about the child’s personal circumstances. On 22 March 2010 the District Court decided on this request.
35. On 30 December 2009 the applicant lodged an appeal with the Frankfurt Court of Appeal (Oberlandesgericht). By interim decision of 12 May 2010 the Court of Appeal, having held a hearing on 15 April 2010, ordered six contact visits to take place between May and August 2010. In October 2010, the main proceedings were still pending before the Court of Appeal.
36. As from 1 September 2009, proceedings in family matters are governed by the Act on Procedure in Family Matters and Non-Contentious Matters (Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit), section 155 of which reads as follows:
“(1) Parent and child matters referring to the child’s place of abode, access rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently.
(2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for the postponement must be furnished when the request for the postponement is made.
(3) The court shall order the parties ... to appear in person at the hearing.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97980
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALLEN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;No violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1970 and lives in Liverpool.
The applicant's initial granting of bail
6. On 6 October 2005 the applicant was charged with two offences of conspiracy to supply Class A drugs.
7. On 7 October 2005 the applicant was produced at Liverpool City Magistrates' Court. Following a contested bail application she was granted bail by the Deputy District Judge.
The prosecution's appeal against the applicant being granted bail
8. The prosecution gave notice that it wished to appeal against the grant of bail and the applicant remained in detention. The appeal hearing was to take place at Liverpool Crown Court on 11 October 2005 and the applicant's solicitors arranged with the Prison Service for her to be present at the court building.
9. The prosecution's appeal came before Judge Globe on 11 October 2005. At the start of the hearing, counsel for the applicant requested that the judge exercise his discretion to allow the applicant to be present while the appeal was heard. It was contended on the applicant's behalf that she had been led to believe that she would be released following the grant of bail at the magistrates' court and that she had not properly understood the implications of the prosecution's appeal. Counsel for the applicant asserted that if she were present she would see that her case was being dealt with fairly and he further clarified that the basis for his application was “common humanity” and “not technical”. Judge Globe declined the request, reasoning that the applicant could be given a full report of what had happened from her counsel. Moreover, her attendance would be undesirable as one of the applicant's co-accused had not been present at the hearing of the appeal against the grant of bail to him, and it would therefore be unfair to treat the applicant more favourably.
10. When the applicant later arrived in the court building, her counsel again requested that she be allowed to attend the hearing in person. He emphasised that this was a re-hearing and rather unusual as it was the prosecution which had sought to appeal the Deputy District Judge's ruling on bail. As the applicant was already present in the building, her production would cause little inconvenience. Judge Globe again refused, this time explaining that if he allowed the applicant to be present it would set a precedent for any defendant in custody wishing to attend an appeal against bail in the future.
11. The applicant's counsel submitted to the judge:
“You have considerable experience of looking at people and taking into account their demeanour. This woman is, on the defence case, a respectable woman of good background and a vulnerable person. I would like you to see her, frankly, because you will be able to tell and see that she does not fall into a category of so many of those who appear before you ... I was able to address the learned District Judge on precisely those terms. I believe that it had some impact on his decision to grant bail because he was able to see her and make an assessment of that person. She is here and you could make that assessment if she was brought up before you.”
12. In refusing the applicant permission to attend, Judge Globe stated:
“I am not going to alter my view in relation to [the applicant] being present during the hearing. I will listen to your submissions. If there is anything during your submissions that causes me to hear evidence from her or to have to do something different to what I am doing at the moment in relation to the hearing of the matter, I will reconsider it at that stage.”
13. At a later stage of the hearing, Judge Globe remarked:
“... [W]hat beyond what you have been able to describe to me are you suggesting that I should gain from bringing her up from the cells into the dock at the moment? What do you want me to do if I were to ask her to come up into the dock, just look at her? Does that add anything to anything that you are suggesting? I have a very clear picture of the sort of person who is going to walk into the dock. No doubt she is going to be very worried. It must be a very intimidating experience for anybody of no previous convictions who has recently been taken into custody, to be brought into a court as large as this. I can imagine full well what is going to happen when she walks in. But given the fact that I can imagine that, and I have seen it happen many times, what else am I going to notice?”
14. The applicant's counsel replied that he had withdrawn his application for her to attend. Judge Globe invited him to make any last submissions about what might be gained by seeing the applicant in person. Counsel answered with:
“...looking at the demeanour of the person, that is all. There is something to do with that assessment which is better if one looks at the person and sees them looking across the court looking back at you. But you have in detail, as you have pointed out, a thorough description of her and if that suffices I am not going to seek to persuade you to go further.”
15. Judge Globe proceeded with the hearing in the applicant's absence. He decided to allow the prosecution appeal and refuse bail, on the grounds that the applicant's brother, one of the co-accused, was at liberty, possibly overseas, and that there was a risk that she would abscond and join him or provide him with information about the prosecution case which would obstruct the course of justice.
The applicant's first application for permission to apply for judicial review
16. The applicant applied for permission to apply for judicial review of the decision not to allow her to attend the hearing on the ground that her rights under the Convention had been breached.
17. On 9 November 2005 Mr Justice Sullivan refused the application for permission to apply for judicial review. He first observed that the applicant was challenging Judge Globe's decision not to allow her to attend the prosecution appeal, and that she did not contend that the ultimate decision to refuse her bail was unreasonable. Mr Justice Sullivan further noted that though Rule 19.17 (4) of the Criminal Procedure Rules (see paragraph 22 below) was not referred to during the hearing before Judge Globe, it was Convention compliant because a person was entitled to be present if, in an exceptional case, the interests of justice so required. The applicant's grounds for applying for permission to seek judicial review did not explain why hers was an exceptional case or why the interests of justice required her attendance whilst she was legally represented.
18. Mr Justice Sullivan took into account Judge Globe's clear indication that he would be prepared to reconsider his view and allow the applicant to be present if there was anything that would require him to hear evidence from her in person. However, counsel representing the applicant had not been able to identify what would be gained by producing the applicant.
The applicant's renewed application for permission to apply for judicial review
19. On 7 December 2005 Mr Justice Gibbs refused the applicant's renewed application for permission to bring judicial review proceedings. The applicant's counsel attended and argued that the decision to refuse her admission to the hearing of the prosecution's appeal had breached her rights under Article 5 § 3, or alternatively, Article 5 § 4 of the Convention. It was asserted that the production of the applicant before the Deputy District Judge did not fulfil the requirements of Article 5 § 3 because the judge was not a judge authorised by law to exercise judicial power, as his decision was subject to immediate appeal and was never put into effect.
20. In giving judgment, Mr Justice Gibbs took into account a transcript of the proceedings before Judge Globe. Although Rule 19.17 (4) had not been expressly cited to Judge Globe, the latter's approach to the application made to him had been entirely consistent with that rule. The general principle underlying Rule 19.17 (4) was that an applicant should not generally be entitled to be present at the hearing of a prosecution appeal. The first exception to that proposition had not been fulfilled as the applicant was not acting in person. Therefore the judge would have to take the view that the case was of an exceptional nature and/or that the interests of justice required the applicant to be present. Judge Globe, in considering the matter, undoubtedly had the interests of justice in mind. He had referred to the position of the co-defendant and had made an enquiry as to whether there was any particular reason to believe that injustice would occur, having regard to the fact that an explanation could be given to the applicant immediately afterwards as to the judge's decision and his reasons for it. Judge Globe had also, notably, left open the possibility of altering his decision if, for example, it became apparent that oral evidence might be required from the applicant in support of her application.
21. Mr Justice Gibbs found that the Deputy District Judge was authorised to exercise judicial power as required by Article 5 § 3 of the Convention and clearly had exercised it, even though his decision was subject to immediate appeal and was not put into effect pending appeal. As concerned the applicant's complaints under Article 5 § 4, the legal framework covering applications for bail, including appeals, did in Mr Justice Gibbs view enable her to take proceedings whereby the lawfulness of her detention could be decided speedily by a court as required by that article. There was, in his judgment, nothing even arguably to be found in the wording of Article 5 § 4 which entitled an applicant to be present at such proceedings in all instances. Where prosecution appeals against refusal of bail were concerned, Rule 19.17 (4) provided a Convention compatible procedure to ensure that no injustice was caused to an applicant in cases in which he or she was not permitted to be present.
22. Rule 19.17(4) of the Criminal Procedure Rules SI 2005/384 (“the Criminal Procedure Rules”) provides as follows:
“The person concerned [when the prosecution appeal against a decision to grant bail] shall not be entitled to be present at the hearing of the appeal unless he is acting in person or, in any other case of an exceptional nature, a judge of the Crown Court is of the opinion that the interests of justice require him to be present and gives him leave to be so.”
23. Section 1 (1) of the Bail (Amendment) Act 1993 (“the 1993 Act”) grants the prosecution the right to appeal to the Crown Court against a decision by magistrates to grant bail in cases concerning particularly serious charges or convictions. Section 1 (3) of the 1993 Act provides that such an appeal may only be made where, prior to the grant of bail, the prosecution has made representations that bail should not be allowed. The appeal itself is by way of a re-hearing of the application for bail and the judge hearing the appeal may remand the accused person in custody or grant bail subject to such conditions as he thinks fit (section 1 (9) of the 1993 Act).
24. Section 1 (4) of the 1993 Act requires that the prosecution give oral notice of its intention to appeal to the court which has granted bail. This must be done at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned. Section 1 (5) gives the prosecution two hours within which to serve written notice of appeal upon both the court which has granted bail and the defendant. If it fails to do so, the appeal is deemed to be disposed of (section 1 (7)). Section 1 (6) of the 1993 Act states that upon receipt of the prosecution's oral notice of appeal against the decision to grant bail, the magistrates' court shall remand the person concerned in custody, until the appeal is determined. Once the proper notice has been given, section 1 (8) of the 1993 Act provides that the hearing of the appeal must commence within two working days of the first instance proceedings at which oral notice of appeal is given.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-85544
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NIEDZWIEDZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Radosław Niedźwiedź, is a Polish national who was born in 1974 and lives in Elbląg.
The applicant was detained in the Elbląg Detention Centre.
In 2000 he intended to vote in the presidential election. However, he was informed that he could not vote because he was not on the list of eligible voters. The applicant did not inquire further.
In 2001 the applicant unsuccessfully attempted to vote in the parliamentary elections. He was informed by a member of the electoral commission that he had been deprived of his civic rights pursuant to a court decision. The applicant wrote to the State Electoral Commission and the Elbląg Regional Court requesting an explanation for the refusal to allow him to vote. He received no reply.
In May 2003 the applicant again unsuccessfully attempted to vote in the referendum on Poland’s accession to the EU. The applicant complained to the State Electoral Commission. He also lodged an electoral complaint (protest wyborczy) with the Supreme Court, claiming that he had been unlawfully deprived of the right to vote in the referendum. On 7 July 2003 the Supreme Court dismissed his complaint. He also filed a criminal complaint with the Elbląg District Prosecutor, but the criminal proceedings were discontinued on an unspecified date.
On an unspecified date in 2004 the applicant brought an action in the Elbląg Regional Court against the president of that court. He sought compensation in the amount of PLN 150,000 for damage sustained in connection with the unjustified refusal to allow him to vote in the 2000 presidential elections, the 2001 parliamentary elections and the 2003 referendum. The applicant submitted that on 29 January 2000 the additional penalty of deprivation of his civic rights had come to an end. Nevertheless, as a result of an error committed by the Regional Court clerk his name had been put on the list of persons who had not been eligible to vote. The applicant claimed to have sustained damage because he could not exercise his constitutional rights and actively participate in elections.
As regards the factual background to the applicant’s claim, the court established that on 17 May 1994 the Elbląg Regional Court had sentenced him to a term of imprisonment and an additional penalty of 2 years’ deprivation of his civic rights. The applicant finished serving the sentence of imprisonment on 29 January 1998. On 2 February 1998 Elbląg Prison notified the Regional Court that the applicant had been released. Subsequently, the period of deprivation of civic rights began to run. The relevant period came to an end on 29 January 2000. Despite this fact, and as a result of the error committed by the court clerk, the applicant’s name was put on the list of disenfranchised persons in respect of the elections mentioned above. The Regional Court adopted as its own the findings of the prosecution service, which found that the above error had resulted from negligence in the duty to duly verify the situation of each person who had been put on the list of disenfranchised persons.
On 25 October 2004 the Elbląg Regional Court awarded the applicant PLN 1,000 (approximately EUR 250) and dismissed the remainder of his claim. It found that the applicant had been unjustifiably deprived of the right to vote in respect of all three elections.
The Regional Court noted that the applicant had not claimed to have sustained any pecuniary damage in this respect. On the other hand, he was seeking some financial compensation in connection with the infringement of his personal rights.
The court found that the right to vote could be considered as one of the personal rights protected under Article 23 of the Civil Code. It held that that personal right had been unlawfully violated in the applicant’s case (“...dobro osobiste zostało naruszone działaniem bezprawnym. Przesłanka ta w niniejszej sprawie jest spełniona.”). Having regard to the above, the court decided, contrary to the defendant’s submission, that the applicant should be awarded non-pecuniary damages under Article 448 of the Civil Code. However, it observed that the degree of intensity of the harm was very much a subjective question. When assessing the amount to be awarded for the infringement of his personal rights, it took into account the fact that the applicant was not active or interested in politics, and that accordingly his subjective feelings of harm could not have been particularly intense. The case would have been different had it involved a politician who had been deprived of the right to vote. The court further observed that the wrong had not been done intentionally and that the damage caused to the applicant had not been significant. It further noted that the consequences of the violation of the right to vote were limited to the emotional sphere. Having regard to all the relevant circumstances and, in particular, the nature of the right that had been violated and the fact that compensation for non-pecuniary damage should not lead to enrichment of the claimant, the court considered it reasonable to award the applicant PLN 1,000. It found the remainder of the applicant’s claim for damages excessive.
The applicant lodged an appeal against the first-instance judgment and contested the insufficient amount of the award. He further claimed that the Regional Court had considered his right to vote to be of lesser importance when compared with the similar right of politicians.
On 16 May 2005 the Gdańsk Court of Appeal upheld the Regional Court’s judgment. It endorsed for the most part the lower court’s findings in respect of the amount of compensation awarded to the applicant and considered it proportionate to the damage sustained by the applicant. The Court of Appeal noted that the amount awarded was higher than the minimum monthly salary (PLN 849) and the amount of unemployment benefit (PLN 504,20). It found that when assessing the extent of harm the Regional Court had correctly relied on the applicant’s limited involvement in politics. Furthermore, the applicant had not established that his involvement in politics had been higher than average.
The Court of Appeal disagreed with the Regional Court only in one respect. It held, referring to Article 77 of the Constitution and Article 417 § 1 of the Civil Code, that the fact that the breach of the applicant’s rights had been unintentional was not relevant for the assessment of the defendant’s liability. However, that shortcoming did not alter the Court of Appeal’s decision.
The applicant intended to lodge a cassation appeal with the Supreme Court. The Court of Appeal appointed him a legal-aid lawyer to that end. However, on 2 November 2005 his legal-aid lawyer informed the applicant in writing that he had found no grounds on which such an appeal could be based.
Article 62 of the Constitution provides:
“1. If, no later than on the date of the vote, he has attained eighteen years of age, a Polish citizen shall have the right to participate in a referendum and the right to vote for the President of the Republic of Poland as well as representatives to the Sejm and Senate and organs of local government.
2. Persons who, by a final judgment of a court, have incurred legal incapacity or deprivation of civic or electoral rights, shall have no right to participate in a referendum or to vote.”
Under the 1997 Criminal Code, deprivation of civic rights (prawa publiczne) is one of the additional penalties that may be imposed by a court.
Article 40 § 1 of the Criminal Code reads in so far as relevant:
“The deprivation of civic rights shall entail the loss of the right to vote and to stand for election ...”
Article 43 § 2 of the Criminal Code provides:
“The deprivation of civic rights ... shall take effect from the time when the judgment becomes final; the period for which deprivation is imposed shall not run during the serving of a custodial sentence, even if the sentence has been imposed in respect of another offence.”
Section 20 of the Law of 12 April 2001 on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej) (“the 2001 Elections Act”) provides in so far as relevant:
“§ 3. The list of voters in prisons and detention centres ... shall be drawn up on the basis of the registers of persons staying there on the date of elections.
§ 5. Persons who are deprived of civic rights by the final decision of a court shall not be included in the list referred to in § 3.”
Section 28 of the 2001 Elections Act provides that a prisoner may file a complaint with the prison governor about being excluded from the list of voters. In the event that the complaint is unsuccessful, the prisoner may further lodge a complaint with a district court.
Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as in particular health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...”


ITEMID: 001-73294
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF FEDOTOVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1970 and lives in Taganrog.
9. The applicant was a party to a civil dispute involving several other persons.
10. On 16 October 2000 the Taganrog Town Court of the Rostov Region, composed of Ms C. (presiding judge), Ms S. and Ms L. (lay judges), dismissed the applicant’s claims and ordered her to bear costs and expenses.
11. On 23 and 24 October 2000 the applicant and her lawyer filed their notices of appeal. The applicant challenged, inter alia, the composition of the bench. She alleged a breach of the rules on the appointment of lay judges in that the lay judges had not been drawn by lot, contrary to the requirements of the Lay Judges Act. In addition, it was claimed that, while the Lay Judges Act allowed lay judges to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the lay judges S. and L. had been engaged earlier in the course of 2000 in at least one another case. Also, according to an undated letter of the President of the Taganrog Town Court, the lay judges S. and L. had been assigned to sit with the presiding judge I. rather than with the judge C.
12. On 24 January 2001 the Rostov Regional Court dismissed the appeals. The court rebutted the argument concerning the allegedly unlawful composition of the bench, relying on the President’s Decree of 25 January 2000 whereby the term of office of acting lay judges had been extended pending appointment of new ones in accordance with the Lay Judges Act. The list of lay judges had only been approved by the Rostov Regional Legislature on 15 June 2000 and made available to the courts on 18 October 2000, that is after the decisions in the applicant’s case had been made. This fact led the Regional Court to the conclusion that the lay judges who had sat in these cases were exempted from the requirements of the Lay Judges Act.
13. Following the Court’s decision as to the admissibility of the application, on 17 April 2004 the applicant submitted her claim for just satisfaction. She claimed, in particular, the legal fees paid to her representative before the Court, Mr Kiryanov, and expenses relating to translation of documents carried out by Ms Volkova.
14. On 9 July 2004 an officer of the Taganrog police department who investigated tax offences formally requested the applicant’s representative and translator to submit evidence that they had paid taxes on the amounts disbursed by the applicant.
15. On 11 July 2004 the applicant informed the Court about the above request. She alleged that it amounted to a hindrance with her right of individual application guaranteed under Article 34 of the Convention. The applicant submitted copies of the summonses for Mr Kiryanov and Ms Volkova and a description of Ms Volkova’s interview at the police station. The police officer questioned Ms Volkova as to who had asked her to perform translations for the applicant, how the applicant had paid for translations, whether they had signed a contract on provision of services and why she had not paid taxes on these amounts.
16. The Court asked the respondent Government to comment on compatibility of the above measures with Article 34 of the Convention.
17. On 29 July 2004 the Government submitted their comments on the applicant’s claim for just satisfaction. They indicated, in particular, that the claimed translation costs had not been “real” because Ms Volkova had not reported the amounts received on her tax declaration.
18. In response to the Court’s request for comments, on 9 August 2004 the Government claimed that the applicant’s allegation of hindrance under Article 34 of the Convention should be registered as a new application and a separate decision as to its admissibility should be taken. They denied that the authorities had forced the applicant, directly or indirectly, to withdraw or modify her application to the Court. The actions of the competent bodies had been lawful and purported to secure payment of taxes and to ensure “the economic well-being of the country”. In the Government’s submission, the inquiry was successful as it had revealed a breach of tax laws by Ms Volkova who had translated correspondence for the applicant but failed to pay taxes on the amounts received. The Government treated the applicant’s letter of 11 July 2004 as “provocation” and maintained that no immunity should be granted to the applicant and her representatives solely by virtue of the fact that she had lodged an application with the Court.
19. On 10 January 2000 the Federal Law on Lay Judges of Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. By section 1 (2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges.
20. Section 2 provides that lists of lay judges must be compiled for every district court by local self-government bodies, such lists being subject to confirmation by the regional legislature. Section 5 determines the procedure for selection of lay judges. It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court. The number of lay judges assigned to every professional judge should be at least three times as many as that needed for a hearing.
21. By section 9, lay judges should be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may only be called for service once a year.
22. Under the Decree of the acting President of Russia issued on 25 January 2000, lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of judges confirmed by the regional legislatures.
23. The Presidium of the Supreme Court of the Russian Federation issued on 14 January 2000 a regulation on the procedure for selection of lay judges. The regulation provided that the President of a district court should draw at random from the general list of lay judges, 156 names for each judge. The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned. The regulation also provided that the sitting lay judges would remain in office until new lists of lay judges had been received.
VIOLATED_ARTICLES: 34
6
VIOLATED_PARAGRAPHS: 6-1