ITEMID: 001-57504
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF H. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Just satisfaction reserved
JUDGES: C. Russo;N. Valticos
TEXT: 8. The applicant is a British citizen, born in 1949. Her early life was marked by disruptive and aggressive behaviour, and she spent several periods in mental hospitals after drug overdoses and bouts of violence.
9. In March 1973, whilst in hospital, she married X, a compulsorily detained patient. They had difficulty in managing their financial affairs and were "manipulative" of staff and patients. Both were discharged from hospital in September 1974, but voluntarily remained as out-patients. In February 1975, the applicant rejoined her family and had a pregnancy terminated, but following her return to X was again admitted to a mental hospital. On 23 December 1975, she gave birth to A.
10. The local County Council ("the Council"), which had been involved in providing social-worker support to the applicant and X, considered that it was only a matter of time before A suffered if she remained with them. X was very frequently violent or abusive and the applicant was impulsive, unpredictable and liable to irrational outbursts; the help received from the social services was apparently not sufficient to reverse these behavioural patterns. Even the separation of X and the applicant, who on the advice of a welfare worker had been admitted to hospital with A as a voluntary patient on 26 January 1976, was not expected radically to alter the position.
11. The Council therefore applied to a juvenile court for a place of safety order (see paragraph 35 below) in respect of A. Such an order was made on 12 February 1976. On 26 February and 22 March, the juvenile court made interim care orders (see paragraph 41 below) in respect of the child and, on 24 March, following an application by the Council to the High Court, she became a ward of court (see paragraphs 51-53 below).
12. In April 1976, the applicant left X and subsequently, in September 1977, obtained a divorce from him.
13. A was placed in a nursery where the applicant saw her for access seventeen times between the spring and autumn of 1976. During some of this period the applicant was in a home for battered wives, where she gave indications of violence on two occasions.
14. On 14 December 1976, the applicant applied, unsuccessfully, to the High Court pursuant to the wardship jurisdiction for staying access. Following a further application of 1 February 1977 to the High Court, she was permitted four hours’ access once weekly, initially at the nursery and subsequently at her parents’ home. Access visits occurred pursuant to this order until June 1977 and the applicant’s overall handling of A was not open to serious criticism. She had in May of that year met H, whom she was later to marry and who had a very significant stabilising effect on her (see paragraph 17 below).
15. The applicant subsequently applied to the High Court pursuant to the wardship jurisdiction for care and control of A. During the four-day hearing, which ended on 24 June 1977, she altered her application to one for increased access, including staying access. The Council contended that the existing access arrangements should be retained but not increased. In a report dated 17 February 1977, the Official Solicitor, representing A as guardian ad litem (see paragraph 53 below), expressed no firm view but hoped that the recent improvement in the applicant’s behaviour would continue. Evidence was given by four doctors, two (who had not met the applicant) on behalf of the Council and two on behalf of the applicant.
The High Court refused the application, terminated the applicant’s access to A and committed A to the care of the Council under section 7(2) of the Family Law Reform Act 1969 (see paragraph 52 below). In the course of his judgment the judge made a recommendation, which was formally recorded in his order of 24 June 1977 and apparently reflected the evidence of one of the doctors and the final submission of the Official Solicitor, that A be adopted. This took the Council and the applicant by surprise as neither of them had dealt with this possibility in their pleadings. However, the applicant did not exercise her right of appeal (see paragraph 53 below).
16. It appears that in the light of this recommendation the Council decided within a short period to place A for adoption. On 21 September 1977, the adoption health forms were sent to the appropriate doctor for completion and, between then and 29 September, the relevant forms were also sent to the applicant. She received, inter alia, the Explanatory Memorandum required by the Adoption Agencies Regulations 1976, the first sentence of which reads: "This Memorandum must be given to the parent ... of a child who is about to be adopted", and she was therefore informed from this moment of the Council’s decision. Indeed, it appears that on 29 September a social worker visited the applicant to discuss adoption and her refusal to sign the certificate at the end of the said Memorandum. At this time, the Council withdrew its social-worker support for the applicant, in the context of her relationship with A, since it was no longer envisaged that this relationship should be nurtured. The Council subsequently proceeded to seek - and ultimately, on 12 October 1978, found - prospective adopters.
17. On 24 October 1977, the applicant married H. Thereafter, her mental and physical position stabilised and, by January 1978, there were signs of a substantial improvement in her health. She and her husband persistently but unsuccessfully approached the Council with a view to re-establishing contact between herself and A, who had remained in a residential nursery. Their interviews with the social services in late 1977 and early 1978 were marked by tension and a deterioration of relations with the social workers. In January 1978, the Council informed them that they would be told as soon as a placement for A was found, so that they could put their point of view in court.
18. In the light of their stable relationship, the applicant and H considered that the Council was unreasonable in refusing them access to A. They therefore instituted, on 13 November 1978, proceedings before the High Court pursuant to the wardship jurisdiction to re-establish access (see paragraph 53 below). According to the Local Ombudsman’s report (see paragraph 31 below), they had, on their solicitors’ advice, deferred making an approach to the courts so that they could show that the applicant’s health had improved and that she had a stable home. The summons issued for access in favour of the applicant was due to be heard on 1 December 1978. On that day, the court ordered H to file evidence in support of the application within twenty-one days and the Council to file evidence twenty-one days thereafter. Leave was granted for A to be examined by a psychiatrist nominated by the Official Solicitor if he saw fit and for all parties to file psychiatric evidence about other parties to the proceedings, including H and A. The summons was then adjourned, with liberty to the parties to restore it.
In subsequent proceedings before the High Court, it was agreed that at the hearing on 1 December 1978, the Council, though apparently without mentioning that it had found prospective adopters in October (see paragraph 16 above), had made its intention to place A for adoption quite clear. All the parties seem to have acquiesced in such placement, to be followed by a combined hearing on the adoption and the access questions, which hearing they clearly envisaged would be held in about six months’ time, before the 1979 long vacation. In particular, the applicant made no request that the placement be postponed and the Council raised no objection to filing its evidence within the time-limit set.
19. On 10 January 1979, A was introduced to the prospective adopters for the first time. After a series of visits, the Council placed her with them on 2 March 1979, a fact of which the applicant was not informed.
20. Allegedly on account of the Christmas holiday period and the need to seek legal aid, H was late in filing his evidence, which did not reach the High Court until 2 February 1979.
21. The Council thereupon failed to meet its deadline of 23 February 1979. The applicant’s solicitor, who had written to the Council on the subject on 15 February without receiving a reply, wrote again on 16 March indicating that, unless its evidence was lodged within seven days, he would refer the question back to the court. When the Council telephoned him on 26 March to assure him that the filing would be effected within two weeks, he replied that this would not be sufficient and that the matter was urgent. However, he did not at this point make any further approach to the court.
In the meantime, on 27 February, the solicitor had written to the Council asking for a report on A’s condition. Following a reminder dated 5 April, the Council replied on 10 April that "A has continued to make good progress and has maintained normal development in all spheres". No reference was made in that letter, or otherwise, to the fact that A had been placed with prospective adopters. The latter had, on 6 March, notified the Council of their intention to apply for her adoption.
22. On 12 April 1979, the Official Solicitor informed the applicant’s solicitor in correspondence that he was unable to arrange for his enquiries for the purpose of the access and adoption proceedings to be made until the Council had filed its evidence; he described the delay on the latter’s part as "quite unacceptable". The applicant’s solicitor instructed London agents with a view to applying for an order directing the Council to file, and he pressed the Council again on the matter on 11 June. On 14 June, he informed the Official Solicitor that the agents were having "extreme difficulty with obtaining dates in London [for a hearing to order the Council to file evidence] due to the recent civil service dispute". The Government have indicated that there does not appear to have been any particular backlog or listing difficulty at that time.
23. On 27 June 1979, the Council informed the solicitor that the relevant affidavits were substantially complete and would be signed in the following week. On 29 June, he nevertheless served a summons, returnable on 31 July, on the Council to order it to comply with the High Court’s direction of 1 December 1978. On 27 July, the Council acknowledged by telephone receipt of the summons and stated that the evidence would be available by 31 July. However, it was not. The registrar directed the Council to file within seven days and ordered costs against it.
24. Two affidavits were filed by the Council on 3 August 1979 and were received by the applicant’s solicitor on 6 August. On that date, he and his client became aware for the first time that A had been placed for adoption during the previous March (see paragraph 19 above). The Council filed a further affidavit on 10 August. The Official Solicitor received copies of these affidavits on 22 August.
25. Until August 1979, the Official Solicitor had also been unaware of A’s placement for adoption. On 25 September, the applicant’s solicitor asked him if his report on the child was now prepared. On 4 October, he replied that no arrangements had yet been made to visit the parties nor had a consultant psychiatrist been instructed; he had, however, been informed by the Council that the prospective adopters of A had instructed solicitors and proposed to apply to the High Court for leave to commence adoption proceedings (see paragraph 62 below). The Official Solicitor stated: "if this is the case it seems to me that it would be more sensible for your client’s application for access and the application for adoption to be heard together, but as soon as I have heard from the foster parents’ solicitors the exact position I shall write to you further." The applicant’s solicitor replied on 16 October, stressing that since the Council had for so long taken no steps in relation to the proposed adoption proceedings, it should not further delay the hearing of his client’s application for access. On 22 October, the Official Solicitor confirmed that he would arrange "in the near future" for the visits and the instruction of the psychiatrist.
26. There followed correspondence between the applicant’s solicitor and the solicitors acting for the prospective adopters of A as to whether it was necessary to seek leave to initiate adoption proceedings in the light of the adoption recommendation recorded in the High Court’s order of 24 June 1977 (see paragraph 15 above). The changed since then and that leave should therefore be sought anew, A still being a ward of court. The latter stated that they were ignorant of the proceedings taken thus far in wardship but considered that the adoption and access issues should be decided at the same time. By letter of 27 November, the Official Solicitor confirmed that he agreed with the second approach since it would save costs.
27. On 14 January 1980, the applicant’s solicitor again pressed the Official Solicitor to proceed in the matter since no further steps had been taken with regard to the proposed adoption proceedings and this was delaying the hearing of his client’s application for access. He was informed by the Official Solicitor on 28 January that the latter had received a draft of the evidence to be submitted in relation to the proposed adoption. According to the Government, the Official Solicitor could not commence his enquiries for the combined purpose of the access and the adoption proceedings until he had received this evidence. It appears that the originating summons for the adoption was in fact issued on 30 November 1979 and that the evidence of the prospective adopters was filed on 22 January 1980 and received by the Official Solicitor on 8 February.
The Official Solicitor appears to have commenced his formal enquiries on 12 February and on 3 April he confirmed to the applicant’s solicitor that a psychiatrist’s report was in the course of preparation, on receipt of which the wardship and adoption reports would be prepared and filed. By 23 May, the Official Solicitor had completed his enquiries and it was possible to fix a date for the hearing. The parties - without reference to the Official Solicitor, who would have preferred an earlier date - chose 8 October, the first available date in term-time; they made no attempt to ask the court to certify the case as fit for vacation business, which could have enabled it to be heard in August or September.
28. The hearing before the High Court was actually held on 21 and 22 October 1980. On the following day, the judge made an adoption order in respect of A (who was de-warded), dispensed with the applicant’s consent to the adoption (see paragraph 61 below) and refused her access to A.
In a long and detailed review, the judge described the case as "difficult and painful", in particular because the circumstances before him in no way arose from any fault or blameworthy conduct on the applicant’s part. As regards the delays since the proceedings were issued on 13 November 1978, he noted that between February and August 1979 both the applicant’s solicitor and the Official Solicitor had been "trying their best to obtain the evidence from the Council" and that on 3 August, when that evidence was filed, the applicant and her advisers learned for the first time of A’s placement for adoption. Whilst taking the view that the Official Solicitor had "acted with all reasonable promptness", he described the Council’s delay, though not deliberate, as "quite deplorable", adding that the apology made by its legal department "does not assist [the applicant] whose case was seriously prejudiced by this delay". He pointed out that "[in adoption proceedings] delay is a potent weapon and courts and practitioners must be vigilant to ensure that the position of natural parents is not prejudiced thereby". Nevertheless, the result of the delay here was that when the case came before the court, A, who was aged four years and ten months, had been with the prospective adopters for nineteen months and had not seen her mother since June 1977, nearly three and a half years previously.
Having taken account of the marked improvement in the applicant’s general circumstances, the judge summarised her case as follows: since everyone was agreed that she was now capable of coping with a child, there was no reason why she should not have A back or at least be allowed to attempt a re-introduction to her; the procedures and delays in both the wardship and the adoption applications had been such as to deny justice to her and also to A; in particular, since July 1977 the Council had closed its mind to any possible rehabilitation and had ceased to provide her with any support, being intent on taking A from her and placing A for adoption.
However, the judge held that in deciding whether the applicant’s withholding of her consent to the adoption was unreasonable, he had to take account of the facts as they existed at the date of the hearing. Referring to section 3 of the Children Act 1975 (see paragraph 61 below), he noted that the welfare of the child was the first and paramount consideration outweighing all others, but recognised that, in accordance with the case-law of the House of Lords, "the claims of the natural parents must be given great weight" and that consideration had to be given, albeit to a much lesser extent, to the interests of the prospective adopters.
On the question of access, the judge recognised that, where the "statutory guillotine" of adoption was implemented, its purpose was to sever all connection with the natural parents and to establish a fresh legal relationship with the adoptive parents. He could find no reason to justify the applicant’s re-introduction to A in the circumstances and therefore ordered that no access be granted.
29. An appeal by the applicant from this decision was dismissed on 14 January 1981 by the Court of Appeal, which also refused leave to appeal to the House of Lords. The Court of Appeal recognised its very limited function in appeals in adoption cases and the limited extent to which it could override the opinion of the first-instance judge, who had heard the witnesses. Having stressed the painful nature of the case and the applicant’s legitimate sense of grievance arising from the delay, the Court of Appeal recalled that both the judge and it had to deal with the situation existing at the time of the hearing. It added: "One may make one’s criticisms of the conduct of the Council, but the fact remains that we are dealing here with the life of another human being and that is not to be decided in awarding pluses and minuses to parties on the conduct of litigation."
30. The applicant sought leave from the Appeal Committee to appeal to the House of Lords but this was refused on 10 June 1981. A subsequent request by her for legal aid with a view to establishing whether she had a cause of action in damages against the Council for its delay in filing evidence was also unsuccessful.
31. The applicant referred the matter to the Local Ombudsman, who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions.
The applicant alleged maladministration, in that from mid-1977 the Council had ceased to support her and had thereafter refused to take account of her improved condition and her increasing ability to look after A. She also complained that the Council’s conduct had been such as to ensure that she did not have the opportunity of looking after the child and that it had refused to examine fully a request by the applicant and H to be considered as foster or adoptive parents.
In his report of 18 August 1983, the Local Ombudsman recognised that it was "certainly not for [him] to question the merits of [the] court decisions in these proceedings". He concluded that the applicant’s complaints revealed no maladministration except in respect of the Council’s delay in filing evidence. He stated:
"It is quite clear from this investigation that part of the delay in getting the matter before the Court was caused by the Council, and this has already been criticised by the Judge. This delay was unreasonable and amounts to maladministration, but I must consider what injustice flowed from it. In many cases it could be that the longer the delay, the more difficult it would be for a Court to break a bond with prospective adoptive parents - the Court after all have to consider what is best for the child at the time they come to their decision. Here, however, it is not so simple. [The applicant] felt she was getting better, so to some extent the longer the time for her to improve, the greater would be her chances of success before the Court. I have read the decision of the High Court very carefully, but it seems to me that it is very unlikely indeed that the decision would have been different even if the Council had acted more quickly."
32. In 1980, the applicant and H discovered A’s whereabouts and the identity of the adoptive parents and made various attempts to contact the child, either at home or at school. In consequence, the adopters instituted wardship proceedings with a view to obtaining an injunction preventing such contacts. The failure, on numerous occasions, of the applicant and H to abide by the High Court’s orders in this respect has led to contempt of court proceedings against them. Requests by them to the local authority for permission to see A - who remains a ward of court - have been unsuccessful, as have applications to the High Court for leave to issue a summons for access.
33. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority.
Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.
The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.
By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for compulsory care and, above all, the wardship jurisdiction of the High Court which were directly relevant.
34. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders.
35. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger.
A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.
If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 51-53 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 36-38 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 41 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".
36. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court.
37. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented.
A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.
38. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 35 above).
39. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents.
40. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption.
41. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 35 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 40 above).
42. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act).
In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.
43. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords.
The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.
44. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.
45. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare.
46. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]).
Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 47 below) or apply to make the child a ward of court (see paragraphs 51-53 below).
47. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975).
Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.
48. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]).
49. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]).
The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).
50. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.
51. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court.
52. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority.
Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.
53. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings.
A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.
The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.
Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.
54. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]).
Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.
55. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority.
In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 57 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.
56. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court.
Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.
57. The statutory remedies described in paragraphs 42-43 and 48-50 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child.
A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:
(a) the authority acted illegally, ultra vires or in bad faith;
(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);
(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).
The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).
58. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 57 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court.
The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.
59. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point.
Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.
This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.
60. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access.
61. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3).
62. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101314
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KRESTOVSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1963 and is serving a prison sentence in Yagul, Udmurtiya Republic.
7. On an unspecified date D., M., Gil. and Gut. were arrested and charged, inter alia, with the murders of P. B. and S. When questioned, D. and Gil. testified that the applicant had hired them to kill B.
8. On 23 April 2001 the applicant was arrested on suspicion of aiding and abetting the murder of B. He remained in custody pending trial and was repeatedly questioned by the investigator.
9. On 9 October 2001 the Supreme Court of the Udmurtiya Republic set the trial for 23 October 2001.
10. On 19 October 2001 the head of the organised crime unit of the regional department of the interior informed the Supreme Court as follows:
“Since December 2000, [the organised crime unit] has been investigating [S.'s murder] ... Defendants [D]., [M]. and [Gil.] ... pleaded guilty and gave truthful statements. On the basis of those statements and the evidence collected it was possible to establish that a leader of the Izhevsk organised criminal gang [V.] had been involved in S.'s murder, committed in April 1998. V. has been put on the federal wanted list.
... [The organised crime unit] received information that the organised crime leaders had decided to kill D. after he testified against V. ... Furthermore, the police believe that D. knows about other crimes committed by organised crime leaders in Udmurtiya.
Having regard to the above..., we consider it possible that an attempt might be made to assassinate D. We hereby request that the trial be closed to the public and conducted at correctional colony no. 9 ...
11. On 22 October 2001 the Supreme Court of the Udmurtiya Republic decided to dispense with the public hearing of the criminal case against the applicant and D., M., Gil. and Gut. The defendants or their lawyers were not present. In particular, the court noted as follows:
“The Supreme Court of the Udmurtiya Republic received a letter from the head of the [organised crime unit] concerning the possibility that D. would be assassinated during the trial. D. had earlier testified about V. being involved in the crimes under investigation.
Having regard to the fact that [(1)] the defendants are charged with particularly serious offences, including involvement in organised crime and [(2)] the court is under obligation to ensure the safety of D. and all parties to the proceedings, the employees of the Supreme Court of the Udmurtiya Republic and other persons, [the court] decides to close the trial and to conduct [it] at remand prison no. 1. Another reason to justify the closure of the trial is the fact that D. is accused of murdering [S.] because the latter had raped [D.'s sister].”
12. On 23 October 2001 the Supreme Court opened the trial at remand prison No. 1. The applicant was represented by counsel of his own choice. The court granted his request to hear additional witnesses on his behalf. The applicant pleaded not guilty and testified in court.
13. On 13 December 2001 the Supreme Court of the Udmurtiya Republic found the applicant guilty of murder and sentenced him to thirteen years' imprisonment. The court based its findings on the confessions provided by the applicant's co-defendants D. and G., statements from eight witnesses, the crime scene investigation and forensic reports.
14. The applicant appealed against the conviction. He complained about the lack of a public hearing of the criminal case against him and assessment of evidence by the first-instance court.
15. On 2 October 2002 the Supreme Court of the Russian Federation upheld the judgment of 13 December 2001 on appeal. The hearing was public. After hearing the applicant and his counsel, the court endorsed the lower court's findings as to the points of fact and law. It appears from the text of the decision that the applicant's argument regarding the lack of public hearing at first instance remained unanswered by the court.
16. The Code of Criminal Procedure in force at the material time provided as follows:
Article 18. Public hearing
“All matters shall be heard in a public hearing unless it contravenes the interests of protection of state secrets.
The [court] may decide ... to close a trial concerning persons under the age of sixteen, sex crimes and other cases in order to prevent the disclosure of information about the private lives of the parties to the proceedings.
The proceedings in the event of a closed trial, shall comply with all rules of [criminal procedure].
The verdict shall be pronounced in public.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80073
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GANCHEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1940 and lives in Velingrad.
5. On 11 November 1999 the applicant was arrested and brought before an investigator who decided to remand him in custody on charges of sexual assault allegedly committed against a minor on 20 October 1999, an offence punishable with up to five years' imprisonment under Article 149 § 1 of the Criminal Code. The investigator's decision was confirmed by a prosecutor.
6. On 18 November 1999 the investigator conducted searches in the applicant's home.
7. On 29 March 2000 the applicant was released.
8. In the course of the investigation a number of witnesses, the alleged victim and the applicant were heard and several forensic and medical reports were drawn up.
9. On 5 February 2001 the investigator submitted his conclusions to the prosecutor, proposing that the applicant should be indicted for sexual assault.
10. On 10 April 2001 the District Prosecutor's Office referred the case back to the investigator instructing him to undertake further investigation as to whether the applicant had raped the same girl on 9 November 1999, as alleged by her.
11. Since the alleged victim had changed her address and could not be located, the investigation could not proceed and was suspended on 1 October 2003.
12. In October 2003 the case file was transmitted to the district police in Velingrad with instruction to continue seeking the alleged victim's address. It appears that as of September 2006, the date of the latest communication received from the parties, the investigation remained suspended.
13. The relevant provisions of the Code of Criminal Procedure (“CCP”) concerning decisions on pre-trial detention and the Bulgarian authorities' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003XII (extracts)).
14. A legislative amendment that entered into force on 2 June 2003 introduced a possibility for an accused person to request that his case be brought for trial if the investigation has not been completed within two years in cases concerning serious offences and one year in all other cases (Article 239a CCP as in force until April 2006). In accordance with section 140 of the transitory provisions to the 2003 amendment, that possibility applies with immediate effect in respect of investigations opened before June 2003. In April 2006, Article 239a was superseded by Articles 368 and 369 of the new CCP, which have the same wording.
15. The procedure under those provisions is as follows. The accused person must submit a request to the relevant court which has seven days to examine the file. It may refer the case back to the prosecuting authorities or terminate the criminal proceedings. If the case is referred to the prosecutors, they have two months to file an indictment with the trial court or to terminate the proceedings failing which the court is under a duty to terminate the proceedings against the accused person who had filed the request.
16. The 2003 amendment was introduced in Parliament with the reasoning that it was necessary to secure observance of the right to trial within a reasonable time as guaranteed by the Convention.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-22054
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: REZGUI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant is a Moroccan national. He was born in 1954 and lives in Le Puy. He was represented before the Court by Mr Michel Gras, of the Le Puy Bar.
On 21 November 1996 the applicant was stopped by police for an identity check and taken to the police station where he claims to have been insulted and assaulted. On being released, he went to hospital where he was kept in after being examined. At about 10.30 p.m. a doctor came into his room saying that he was a forensic medical examiner and had come to examine the applicant at the public prosecutor’s request. The applicant refused to submit to the examination and left the hospital to go to a private clinic.
On 28 November 1996 the applicant lodged a criminal complaint with the investigating judge alleging assault in the course of his duties by a person exercising public authority, and trespass by the forensic medical examiner. He sought leave to join the proceedings as a civil party seeking damages. On 5 December 1997 the investigating judge issued an order finding that there was no case to answer. The applicant appealed. The Indictment Division upheld the order in a judgment of 17 March 1998. The applicant appealed on points of law against that judgment. In a judgment of 16 December 1998, the Court of Cassation declared the appeal inadmissible on the ground that the applicant had not made out “any complaint that a civil party may lodge under Article 575 of the Code of Criminal Procedure in support of an appeal against the decision of an Indictment Division in the absence of an appeal by the prosecution”.
Article 575 of the Code of Criminal Procedure
“A civil party shall be barred from lodging an appeal on points of law against judgments of the Indictment Division unless the prosecution lodges an appeal.
However, an appeal on points of law by the civil party above shall be admissible in the following circumstances:
1. where the Indictment Division has stated in the judgment that there are no grounds for an investigation;
2. where the Indictment Division has declared the civil party’s action inadmissible;
3. where the Indictment Division has upheld an objection terminating the criminal proceedings;
4. where the Indictment Division has declared, of its own motion, or on an objection by the parties, that it has no jurisdiction;
5. where the Indictment Division has omitted to rule on a charge;
6. where the judgment does not formally satisfy the conditions essential for its legal validity;
7. where a breach of personal rights as defined in Articles 224-1 to 224-5 and 432-4 to 432-6 of the Criminal Code has been alleged.”


ITEMID: 001-114116
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ROZSA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Viktor Rozsa, is a Romanian national who was born in 1963 and lives in Târgu-Mureş.
2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
3. On 11 May 2004 the applicant was arrested on suspicion of theft. He was later sentenced to three years’ imprisonment for the said offence.
4. On the same day the applicant was taken to a cell at Târgu-Mureş police station, where he was detained for twenty-nine days. He alleged that, before, while and after being taken to the police station that day, he was repeatedly hit by the police officers accompanying him because he was drunk and refused to answer their questions until a lawyer and a prosecutor were present. Consequently, he asked to be taken to the local Institute of Forensic Medicine to be examined by a forensic doctor.
5. On 11 May 2004 the applicant was examined by the Târgu-Mureş police detention centre’s doctor. A medical report produced the same day stated that the applicant had bruises and contusions on his face, a deformed nasal pyramid and had suffered thoracic trauma as a result of aggression. On the same date he was also examined at the Târgu-Mureş County Hospital by a cardiologist, who recorded inter alia in a further medical report of that date that the applicant had suffered cranio-facial injuries.
6. On 14 May 2004 the applicant was taken to the Târgu-Mureş Institute of Forensic Medicine and was examined by a forensic specialist. A report produced on the same date stated that the applicant’s face and body bore several bruises and abrasions and that the injuries could have been caused on 11 May 2004 as a result of direct hitting with or against hard objects. The report also stated that the injuries would require seven to eight days of medical care in order to heal.
7. On 14 May 2004 the applicant brought criminal proceedings with civil claims for abusive conduct and unlawful arrest against the two police officers who had detained him on 11 May 2004, namely S.R. and C.I.P. He was assisted by a lawyer during the entire course of the proceedings and argued that the two police officers had insulted, threatened and hit him for two hours on 11 May 2004 and had forced him to provide them with statements.
8. By an order of 20 September 2004 the Târgu-Mureş Prosecutor’s Office discontinued the criminal investigation opened against the two police officers on the grounds that no unlawful act had been committed. It found that at 4 a.m. on 11 May 2004, P.H. had witnessed from the window of his home two individuals who were taking things out of the boot of a car. Suspecting that the two individuals were thieves, he decided to go out of his house and stop them. He asked L.S. to call the police and proceeded towards the two individuals, who started to run away. P.H. pursued them and managed to catch the applicant, who was drunk and kept falling over. Although P.H. tried to hold him up until the police arrived, the applicant kept pushing him away in repeated attempts to escape. The applicant was taken to the police station by officers S.R. and C.I.P. and was left in the company of S.R., who attempted to question him. C.I.P. returned to the scene of the crime to take statements from the witnesses, L.S. and P.H. According to the police officers’ statements, the applicant had refused to answer any questions and denied that he had committed any crime. They also stated that he had threatened the officers, which was confirmed by the witness, P.H. The officers alleged that the applicant had become angry because he had not been allowed to leave and had vigorously smashed his head into the window of the room in which he was detained, but had not managed to break it because it was fitted with metal rods. Consequently, the Târgu-Mureş Prosecutor’s Office held that the two police officers had acted within the scope of their duties prescribed by law and that the applicant’s injuries, confirmed by the medical forensic report, had been caused by the fight the applicant had had with a third party, namely P.H., and by his own deliberate actions. The applicant appealed against the decision before the hierarchical prosecutor.
9. By a final order of 27 October 2004, the chief prosecutor of the Târgu-Mureş Prosecutor’s Office dismissed the applicant’s appeal on the grounds that there was no evidence in the file that the applicant had been hit or insulted by the police officers and that his injuries could have been caused by the third party who had immobilised him. The chief prosecutor held that according to the witness, P.H., the applicant was drunk and when the witness caught him, he attempted to start a fight, but fell and hit the curb, which made his clothes dirty with dust and mud and his face bleed. The same witness stated that although the police officers forced the applicant to get into the police car, they were not violent. The second witness, L.S., confirmed that the applicant attempted to escape from P.H.’s hold several times and that P.H. pinned him to the ground each time. L.S. also confirmed that the applicant’s face was already bleeding and his clothes were covered in dust and mud prior to the police officers’ arrival. Furthermore, the police officers denied having committed an offence and declared that by the time they arrived at the scene, the applicant had been pinned to the ground by P.H., who informed them that there had been a struggle between him and the applicant. The officers further stated that they had taken the applicant to the police car and asked him to lie down because he was bleeding. They also contended that at the police station the applicant had become angry and smashed his head against a glass window. The applicant appealed against the decision before the Mureş County Court, arguing that the forensic investigation, which had taken place several days after the incident, had been superficial because the forensic specialist had not x-rayed his ribs, which had been broken as a result of police aggression.
10. By a judgment of 28 January 2005, the Mureş County Court dismissed the applicant’s appeal and upheld the order of the Prosecutor’s Office. It held that the injuries suffered by the applicant on 11 May 2004 were undeniable, but that they had been caused as a result of the physical interaction between the applicant and P.H., and the applicant’s own deliberate actions. The applicant appealed against the judgment.
11. In his written submission before the Târgu-Mureş Court of Appeal lodged on 4 April 2005, the applicant stated that he had been beaten by the two police officers. He argued that he had only been taken to a forensic doctor eight or nine days after the incident and that the forensic investigation had been superficial as the doctor had not x-rayed his ribs. Moreover, he had been ill-treated by the police officers before and after being taken to the police station and his requests for a lawyer and a prosecutor to investigate his case had been ignored. Consequently, in an attempt to stop the ill-treatment to which they were subjecting him, he had jumped and smashed into a window fitted with metal rods.
12. By a final judgment of 4 April 2005 the Târgu-Mureş Court of Appeal dismissed the applicant’s appeal as ill-founded on the grounds that there was no evidence in the file to support the applicant’s claims that his injuries had been caused by the two police officers.
13. The applicant was transferred to Târgu-Mureş Prison from 9 June 2004 to 25 August 2006.
14. On 14 July 2004 the applicant was examined and treated inter alia for obliterative arteriopathy in his legs (arteriopatie obliterată a membrelor inferioare).
15. Between 19 October and 8 November 2004, the applicant was detained in Dej Prison Hospital. A medical report dated 19 October 2004 showed that he was suffering from pain in his legs, paraesthesia and bad circulation. He also had a weak bilateral arterial pulse. He was treated with anti-inflammatory and anti-platelet drugs, multivitamins, muscle relaxants and beta blockers. By the time he was discharged from the hospital, his condition had improved and it was recommended that he stop smoking and start a special diet. He was also prescribed anti-platelet and antihypertension medicines and treatment with a vasodilator, and advised to consult a cardiovascular specialist.
16. On 23 November 2004 the applicant wrote to the Târgu-Mureş Prison authorities requesting examination by a cardiovascular surgeon as recommended by his discharge papers from Dej Prison Hospital. He claimed that he was suffering from pain in his legs as a result of his condition, which prevented him from sleeping at night. Moreover, he stated that he had asked the prison medical office to assist him with his request, and although the prison doctor had attempted to contact the Rahova Prison Hospital, he had never been taken for the examination. Lastly, he informed the prison authorities that he had decided to go on hunger strike until a specialist doctor had examined him. On the same date the prison doctor recommended that the applicant be taken for an additional medical examination.
17. On 14 December 2004 the applicant was examined by a specialist doctor in the Târgu-Mureş No. 4 Clinic. A medical report produced on the same date recommended that the applicant be subjected to a peripheral vascular Doppler test or to an aortography.
18. On 14 December 2004 the applicant wrote to the Târgu-Mureş Prison authorities and asked to be hospitalised in a civilian hospital for an aortography, which he claimed could not be carried out in a prison hospital. He argued that his condition was deteriorating and that he needed surgery in order to treat his condition and avoid losing his left leg.
19. On an unspecified date the Târgu-Mureş Prison doctor recommended that the applicant undergo a neurological examination by January 2005 and that he be hospitalised in a civilian hospital for a maximum of two days for an aortography.
20. On 22 December 2004 the applicant underwent a neurological examination.
21. On 5 January 2005 the Târgu-Mureş Prison authorities requested that the applicant be hospitalised in the cardiovascular surgery unit of the Rahova Prison Hospital for an aortography. In addition, on 13 January 2005 they recommended once more that the applicant be transferred to Rahova Prison Hospital for examination by a specialist.
22. Between 18 January 2005 and 7 February 2005 the applicant was hospitalised in Rahova Prison Hospital with a diagnosis of chronic arteriopathy (arteriopatie cronică oscilantă a membrelor inferioare) and pain in the left leg.
23. On 26 January 2005 the applicant was taken to the Central Military Hospital for a cardiovascular examination. He was diagnosed with stagetwo thrombangeitis obliterans in the left leg and recommended surgery, in particular a sympathectomy, and vasodilator treatment.
24. On 1 February 2005 the applicant consented to an operation in the Rahova Prison Hospital. The surgery was performed the same day and was successful.
25. He spent the first twenty four hours after the surgery in the intensive care unit of the prison hospital. Afterwards he was transferred to room no. 5 of the surgical ward, which had the necessary medical equipment as well as beds, windows and heating. He received treatment with anticoagulants, antialgic and anti-hypertension medication until 7 February 2005. The medical records show that his post-surgery recovery was normal.
26. On 7 February 2005 the applicant was transferred to Târgu-Mureş Prison with the doctor’s approval. He was prescribed a special diet, rest, monitoring by the prison infirmary for ten days, and the removal of postsurgery stitches.
27. The applicant claimed that, prior to his transfer from Rahova Prison Hospital he had spent the night in a cold room. Moreover, the transfer to Târgu-Mureş Prison had taken thirteen hours and his wound had started to bleed.
28. Upon his arrival at Târgu-Mureş Prison, the applicant was examined by the prison doctor and given a bed in room no. 1 of the prison infirmary, which had windows and heating. The doctor prescribed medical treatment for him, checked his post-surgery stitches, and recommended that the stitches be removed.
29. On 8 February 2005 the applicant’s post-surgical wound started to fester and he was prescribed antibiotic treatment.
30. On 9 February 2005 the applicant refused to take the antibiotic and anti-hypertension medication provided to him by the prison authorities.
31. On 11 February 2005 the applicant’s dressing was changed. According to his medical chart, he had not ensured the correct hygiene for his post-surgical wound. He refused to allow the stitches to be removed for a further three days.
32. On 14 February 2005 the applicant’s stitches were removed. The dressing of the wound was changed and the doctor identified a slight festering of the wound and again prescribed treatment with antibiotics.
33. On 17 February 2005 the applicant’s wound had healed and he was discharged from the Târgu-Mureş Prison infirmary. Later on the same date the dressing of his wound was changed. According to the medical records, the applicant had failed to use clean underwear, the wound was producing light serous secretions, but pus was absent.
34. On 18 and 24 February and 1 March 2005 the applicant was examined by the Târgu-Mureş Prison doctor and the medical records state that his wound had continued to fester. On 1 March 2005, as a result of the pain the wound was causing the applicant, the prison doctor recommended that he be transferred to Dej Prison Hospital.
35. On 8 March 2005 the applicant was hospitalised in Dej Prison Hospital and diagnosed with an abscessed granuloma on the surgical scar. He was treated for his condition and discharged from the prison hospital on 22 March 2005 after his condition had improved.
36. Between 26 April and 3 May 2005 the applicant was hospitalised again in Dej Prison Hospital because of pain in his legs, in particular cold sensations and paraesthesia. The medical records show that he was treated for his condition and that upon discharge, his surgical wound had healed and his condition had improved. Moreover, he was recommended vasodilator treatment and an examination by a cardiovascular specialist.
37. On 15 June 2005 following a complaint made by the applicant to the National Administration of Prisons (“the NAP”) that the prison doctor had failed to undertake all the necessary steps for him to be hospitalised in a cardiovascular unit, the NAP informed the applicant that his medical records showed that he had been monitored and examined for his condition several times by the prison hospitals. The specialist doctors had recommended that he stop smoking and take his prescribed medication. The Târgu-Mureş Prison medical office had examined the applicant forty one times and provided him with the medication prescribed by the specialist doctors. Moreover, the NAP argued that the applicant had failed to observe the doctors’ recommendations to stop smoking and follow the prescribed treatment. Consequently, the NAP concluded that the prison doctor was free to decide the appropriate treatment for the applicant’s condition and whether further medical examinations were required.
38. Between June and 2 August 2005 the applicant was hospitalised several times in civilian hospitals for medical examinations. He was provided treatment for his condition and underwent both a Doppler test and an aortography. The discharge papers dated 2 August 2005 recorded that the applicant was scheduled for surgery on 12 September 2005 for an iliofemoral bypass.
39. On 18 July 2005 the Târgu-Mureş Prison doctor informed the prison authorities that the applicant’s medical condition was not connected to the conditions of his detention but rather to his unwillingness to give up smoking. Moreover, he had been provided with medical treatment for his condition and additional medical examinations were scheduled.
40. On an unspecified date the applicant brought proceedings before the domestic courts seeking his temporary release for three months on medical grounds.
41. By a final judgment of 7 September 2005 the Târgu-Mureş District Court allowed the applicant’s action seeking his temporary release from prison. It held that the forensic medical report produced on 28 July 2005 by the Târgu-Mureş Institute of Forensic Medicine had shown that the applicant’s condition did not prevent him from serving his prison sentence. However, he needed reconstructive vascular surgery for his legs that could not be performed in a prison hospital.
42. Between 12 and 21 September 2005 the applicant was hospitalised in the general surgery unit of the Târgu-Mureş County Hospital and underwent ilio-femoral bypass surgery. His discharge papers stated that he was healed at the time of discharge and it was recommended that he take various medicines, rest, avoid the cold and stop smoking and drinking.
43. The applicant was temporarily released from prison between 21 September and 14 December 2005.
44. On 15 December 2005 the applicant returned to prison after his temporary release on medical grounds, following his ilio-femoral bypass surgery. According to a medical examination carried out on the same date, the applicant had not followed the recommended post-surgery treatment during his temporary release from prison.
45. Between January and June 2006 the applicant was examined nine times by the prison doctor and was provided treatment for his medical conditions.
46. On 22 June 2006 the applicant was hospitalised in Dej Prison Hospital complaining of pain in his legs, in particular cold extremities and paraesthesia. He was provided treatment and discharged after his condition had improved. He was prescribed analgesic and vasodilator treatment, and a surgical examination after two months.
47. On 25 August 2006 the applicant was conditionally released from prison.
48. The relevant provisions of the Code of Criminal Procedure regarding the remedies available in order to contest prosecutors’ decisions are described in Dumitru Popescu v. Romania (no. 1) (no. 49234/99, §§ 43-45, 26 April 2007).
49. Excerpts from the relevant provisions concerning the rights of detainees and the stay of execution of a sentence of imprisonment, namely Government Ordinance 56/2003 and the Code of Criminal Procedure, are set out in Petrea v. Romania (no. 4792/03, §§ 22 and 23, 29 April 2008).


ITEMID: 001-79905
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ASFUROGLU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 4. The applicants were born in 1937, 1954, 1944, 1944, 1920, 1964, 1959, 1928, 1958 and 1958, respectively, and live in Hatay.
5. On various dates, the applicants bought plots of land, near the coast, in Hatay. Some of the applicants constructed houses, others built restaurants and hotels on this land.
6. In 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance to determine whether the applicants' land was located within the coastline area. A group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants' land and concluded that it was located within the coastline area.
7. Following the conclusion of the experts' report, the Treasury filed actions before the Samandağ Court of First Instance requesting the annulment of the applicants' title-deeds to the plots because of their coastal area location.
8. On various dates, the Samandağ Court of First Instance, after having obtained additional expert reports, upheld the request of the Treasury and decided to annul the title-deeds of the applicants. In its decisions, the court held that, pursuant to domestic law, the coast could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the land.
9. The applicants' appeals against the judgments of the first-instance court were dismissed by the Court of Cassation. The applicants' requests for rectification of these decisions were also rejected by the Court of Cassation.
The details are indicated in the table below:
10. The relevant domestic law is set out in the Court's judgments in the cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005) and Doğrusöz and Aslan v. Turkey (no. 1262/02, § 16, 30 May 2006).