ITEMID: 001-89340
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MAGAMADOVA AND ISKHANOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants were born in 1964 and 1958 respectively. They live in the village of Mesker-Yurt, Shali District, in the Chechen Republic.
5. The first applicant was married to Mr Viskhadzhi Shatayevich Magamadov, born in 1962; they are the parents of five children. The second applicant was married to Mr Khaskhan Shakhtamirovich Mezhiyev, born in 1963; they are the parents of three children. At the material time the two couples lived in neighbouring houses in Mesker-Yurt.
6. Between 13 and 14 November 2002 Khaskhan Mezhiyev stayed overnight at Viskhadzhi Magamadov’s home. The men slept in the main house. The first applicant, her children and her brother-in-law slept in an annexe to the Magamadovs’ family house.
7. At 5 a.m. on 14 November 2002 the first applicant woke up and heard the sound of gates opening. Shortly after that a group of unknown armed men entered her room. They wore camouflage uniforms and body armour; some of them wore masks. They did not identify themselves. The first applicant believed that they were servicemen of the Russian federal troops because they had Slavic features and spoke Russian without any accent. One of the servicemen shouted at the first applicant, using swearwords freely. The men examined the room where the first applicant, her children and brother-in-law slept and, having realised that there were no adult men in it, left. The first applicant looked out of the window and noticed in the courtyard about ten servicemen surrounding the main house.
8. In the meantime Viskhadzhi Magamadov, a practising Muslim, was performing his prayer in the main house. The servicemen entered his room and pushed him down to the floor. Then they forced Viskhadzhi Magamadov and Khaskhan Mezhiyev out to the courtyard and ordered them to run barefoot towards two armoured personnel carriers (“APCs”) parked nearby. The APCs’ registration numbers were covered with mud.
9. The first applicant tried to follow her husband but the servicemen blocked her way. Eventually she went out of the annexe to the courtyard.
10. The servicemen threw Viskhadzhi Magamadov and Khaskhan Mezhiyev on the ground and hit them with rifle butts. Then they put the two men into the APCs and drove away.
11. When the first applicant entered the main house, she discovered that there had been a search as there was a mess in the house and the floor was covered with scattered sugar.
12. The applicants have had no news of Viskhadzhi Magamadov and Khaskhan Mezhiyev since 14 November 2002.
13. The Government disagreed with the applicants’ account of events. They argued that the second applicant had not witnessed her husband’s abduction and concluded that it was doubtful that the kidnapping had taken place at all.
14. Shortly after the events of 14 November 2002 the applicants started to search for their husbands. They repeatedly contacted various official bodies, both in person and in writing, informing them that their husbands had been apprehended on the night of 13 to 14 November 2002 and trying to establish the whereabouts and fate of those missing. In particular, they applied to the prosecutors’ offices at different levels, the Ministry of the Interior of the Chechen Republic, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit, the Federal Security Service (“FSB”), the Russian Ombudsman and the Russian State Duma, describing in detail the circumstances of their husbands’ abduction. In their efforts the applicants were assisted by the SRJI. The official bodies forwarded the majority of the complaints to the prosecutors’ offices for investigation.
15. On 22 November 2002 the Shali district prosecutor’s office (“the district prosecutor’s office”) instituted an investigation into the disappearance of Viskhadzhi Magamadov and Khaskhan Mezhiyev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 59263. The decision read as follows:
“At about 5 a.m. on 15 November 2002 unidentified armed men wearing camouflage uniforms [who had arrived] in two APCs surrounded the house at 28 Shkolnaya Street in the village of Mesker-Yurt and seized [Mr] Mezhiyev and [Mr] Magomadov. After that [Mr Mezhiyev and Mr Magomadov] were placed in the APCs and taken away in an unknown direction.”
16. On 22 January 2003 the district prosecutor’s office stayed the investigation in case no. 59263 for failure to identify those responsible. The second applicant was informed of the suspension by letter of 29 January 2003.
17. On 26 March 2003 the military prosecutor of military unit no. 20116 (“the unit prosecutor’s office”) informed the applicants that military personnel had not been implicated in Viskhadzhi Magamadov and Khaskhan Mezhiyev’s abduction.
18. On 6 April 2003 the applicants requested the prosecutor’s office of the Chechen Republic and the district prosecutor’s office to resume the investigation and to admit them to the proceedings as victims. On 11 April 2003 the district prosecutor’s office replied that their application concerning the search for their husbands “apprehended by unidentified servicemen of law enforcement bodies of the Russian Federation” had been included in the investigation file in case no. 59263 and stated that the applicants would be informed of any progress in the investigation.
19. On 7 July 2003 the prosecutor’s office of the Chechen Republic quashed the decision of 22 January 2003 on suspension of the investigation, reopened the proceedings in case no. 59263, ordered that the district prosecutor’s office take all requisite investigative measures to resolve the crime and informed the applicants accordingly.
20. On 15 July 2003 the Main Military Prosecutor’s Office forwarded the second applicant’s letter to the prosecutor’s office of the Chechen Republic.
21. On 1 August 2003 the prosecutor’s office of the Chechen Republic sent letters identical to the one of 7 July 2003 to each of the applicants.
22. On 4, 11 and 18 August 2003 the prosecutor’s office of the Chechen Republic forwarded the second applicant’s letters to the district prosecutor’s office.
23. On 15 August 2003 the Department of the FSB of the Chechen Republic informed the first applicant that her husband had not been detained by FSB officers, that he had not been suspected of any crimes and that the FSB was taking the necessary steps to establish his whereabouts and to identify those responsible for his disappearance.
24. On 23 August 2003 the Ministry of the Interior of the Chechen Republic forwarded the second applicant’s letter to the Shali district department of the interior (“ROVD”) and ordered the facts complained of to be verified and procedural steps taken if necessary.
25. On 1 September 2003 the district prosecutor’s office informed the applicants that the investigation into their husbands’ kidnapping was in progress.
26. On 20 September 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the unit prosecutor’s office and ordered it to conduct an inquiry.
27. On 20 January 2004 the prosecutor’s office of the Chechen Republic informed the applicants that “on 26 October 2003 the investigation in the criminal case [had been] suspended pursuant to Article 208 § 1 of the Russian Code of Criminal Procedure (due to failure to identify the alleged perpetrators)” and that “[o]n 20 October 2003 the prosecutor’s office of the Chechen Republic [had] resumed the investigation and investigative measures aimed at identification of the perpetrators and establishment of [the applicants’] relatives whereabouts [were] being taken”.
28. On 14 February 2004 the district prosecutor’s office informed the first applicant that the investigation had been resumed on 2 February 2004 and that investigative measures were being taken.
29. On 28 April 2004 the district prosecutor’s office informed the first applicant that the investigation in case no. 59263 was under way.
30. On 20 May 2004 the UGA prosecutor’s office informed the unit prosecutor’s office that its letter of 20 September 2003 remained unanswered, forwarded a copy of the first applicant’s complaint for the second time and ordered an inquiry.
31. On 4 June 2004 the prosecutor’s office of the Chechen Republic forwarded a complaint lodged on behalf of the second applicant by Civic Assistance, a regional NGO based in Moscow, to the district prosecutor’s office.
32. On 11 August 2004 the prosecutor’s office of the Chechen Republic informed the second applicant that her complaint lodged with Civic Assistance had been included in the investigation file in case no. 59263 and that investigative measures were being taken to establish her husband’s whereabouts.
33. On 5 November 2004 the prosecutor’s office of the Chechen Republic forwarded to the district prosecutor’s office a complaint lodged by the SRJI on behalf of the applicants for examination and requested that case no. 59263 be investigated more energetically.
34. On 6 July 2005 the unit prosecutor’s office informed the first applicant that they had no information on her husband’s whereabouts.
35. On 8 and 11 July 2005 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s requests for assistance in the search for her husband to the district prosecutor’s office.
36. On 22 August 2005 the district prosecutor’s office informed the second applicant that the investigation in case no. 59263 had been suspended on 2 March 2005.
37. On 27 August 2005 the UGA prosecutor’s office informed the second applicant that she should send her further queries to the district prosecutor’s office or to the prosecutor’s office of the Chechen Republic.
38. On 15 September 2005 the district prosecutor’s office informed the first applicant that the investigation had been suspended.
39. On 8 November 2005 the SRJI requested an update on the progress in the investigation in case no. 59263 from the prosecutor’s office of the Chechen Republic. In reply they were informed that the prosecutor’s office of the Chechen Republic had resumed the investigation on 28 October 2005.
40. On 9 November 2005 the district prosecutor’s office informed the applicants that the investigation had been suspended on 30 October 2005.
41. On 19 January 2006 the prosecutor’s office of the Chechen Republic informed the second applicant that she had been granted victim status and questioned on 22 November 2002 and that the investigation had been suspended.
42. On 15 November 2002 the second applicant complained to the district prosecutor’s office of her husband’s kidnapping by unknown men.
43. On 22 November 2002 the district prosecutor’s office instituted an investigation of Viskhadzhi Magamadov and Khaskhan Mezhiyev’s abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 59263. On the same date the second applicant was granted victim status and questioned. She submitted that her husband had gone to his neighbour’s home and then been taken away by unidentified armed men in two APCs.
44. On 27 November 2002 the district prosecutor’s office sent requests for information to the ROVD, the department of the FSB of the Shali district, a military prosecutor’s office, the military commander of the Shali district, the information centre of the Ministry of the Interior of the Chechen Republic, the remand prisons in the Chechen Republic and operational and search bureau no. 2 (“ORB-2”). In reply they were informed that the police, the FSB and the military had not carried out any operations in respect of Viskhadzhi Magamadov and Khaskhan Mezhiyev, that the two men had not been arrested or detained and that the State agencies had no information on the whereabouts of the missing men.
45. On 10 December 2002 the district prosecutor’s office granted the first applicant victim status in case no. 59263 and questioned her. The first applicant submitted that her husband had been unemployed. In the evening of 14 November 2002 Khaskhan Mezhiyev had come to visit her husband. At about 5 a.m. on 15 November 2002 the first applicant had been awakened by noise coming from the courtyard and seen armed men in camouflage uniforms, some of whom had worn masks. The men had entered the house in which her husband and Khaskhan Mezhiyev had been sleeping, taken them outside and brought them to the APC.
46. On 22 January 2003 the investigation was suspended for failure to identify those responsible.
47. On 2 February 2004 the district prosecutor’s office resumed the investigation in case no. 59263 and informed the applicants accordingly.
48. At some point the investigation was suspended. It was resumed on 30 September 2005 and again suspended on 30 October 2005.
49. On 23 July 2006 the district prosecutor’s office refused to institute a criminal investigation into the first applicant’s allegations that the armed men who had kidnapped her husband had sprayed an unknown fluid in her face for the reason that the first applicant had sustained no bodily injuries.
50. The district prosecutor’s office questioned a number of witnesses. Neither the witnesses nor the victims alleged that Viskhadzhi Magamadov and Khaskhan Mezhiyev had been beaten at the time of their abduction.
51. The Government submitted that the investigating authorities had sent a number of queries to various State bodies and had taken other unspecified investigative measures.
52. The investigation failed to establish the whereabouts of Viskhadzhi Magamadov and Khaskhan Mezhiyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of servicemen of the military or law enforcement agencies in the crime.
53. On 15 May 2007 the district prosecutor’s office resumed the investigation in case no. 59263 and informed the applicants accordingly.
54. The Government further submitted that the progress in the investigation was being supervised by the Prosecutor General’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation.
55. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in case no. 59263, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several consequent notifications to the relatives. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
56. Article 125 of the Russian Code of Criminal Procedure 2002 (“the CCP”) provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.
57. Article 161 of the CCP establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-75137
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZUBKO AND OTHERS v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
JUDGES: Peer Lorenzen;Zoryana Bortnovska
TEXT: 4. The first applicant was born in 1954, the second applicant in 1971 and the fourth applicant in 1963. The first, second and fourth applicants are judges who live in Kirovograd. The third applicant, a retired judge, was born in 1942 and currently lives in Gayvoron in the Kirovograd region.
5. In November 2002 the first applicant lodged complaints with the Pechersky District Court of Kyiv (“the Pechersky District Court”) against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.
6. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant 5,807.26 Ukrainian hryvnas (UAH) in compensation.
7. On 9 July 2003 the Kyiv City Court of Appeal (“the Court of Appeal”) upheld this judgment and it became final.
8. On 11 August 2003 the Pechersky District Bailiffs' Service (“the PBS”) decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the execution writs with the State Treasury.
9. On 22 September 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration.
10. On 6 November 2004 the applicant received the sum due to him under the judgment of 16 December 2002 (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)
11. In November 2002 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.
12. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 10,291.61 in compensation.
13. On 9 July 2003 the Court of Appeal upheld this judgment and it became final.
14. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that she should lodge the execution writs with the State Treasury.
15. On 5 February 2004 the State Treasury returned the writs of execution in respect of the judgment of 16 December 2002, which remained unenforced owing to a lack of funds in the State budget.
16. On 15 November 2004 the applicant received the sum due to her (payment order no. 173). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)
17. On 22 March 2000 the third applicant retired, following a decision of the Verkhovna Rada to dismiss him.
18. In November 2001 the applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.
19. On 14 January 2002 the Pechersky District Court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 4,822 in compensation.
20. On 8 May 2002 the Court of Appeal upheld this judgment and it became final.
21. On 21 May 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds.
22. On 8 September 2003 the Kyiv City Department of Justice informed the applicant that the judgment could not be enforced owing to a lack of funds in the State budget for such expenditure.
23. On 8 September 2003 the Deputy Head of the State Judicial Administration informed the applicant that the judicial administration was not liable for payment of debts that had been incurred before it had been established.
24. On 22 December 2003 the PBS returned the writ of execution to the applicant on the ground that there were no funds in the budget of the State Treasury for the enforcement of such judgments.
25. On 6 November 2004 the applicant received the sum awarded to him by the judgment of 14 January 2002 (payment order no. 163).
26. On 30 November 2004 the applicant received the sum due to him in the form of a payment order (no. 3698) to his bank account). (The enforcement proceedings lasted from May 2002 to November 2004, that is, for about two years and six months.)
27. In November 2002 the fourth applicant lodged complaints with the Pechersky District Court against the Ministry of Finance and the State Treasury, seeking payment of salary arrears, life-term judicial benefits and compensation for delays in their payment.
28. On 16 December 2002 the district court allowed the applicant's claims. It ordered the Ministry of Finance and the State Treasury to pay the applicant UAH 5,978.34 in compensation.
29. On 9 July 2003 the Court of Appeal upheld this judgment and it became final.
30. On 11 August 2003 the PBS decided not to initiate enforcement proceedings in the case and informed the applicant that he should lodge the writs with the State Treasury.
31. In October 2003 the applicant lodged the writs of execution with the State Treasury. On 10 November 2003 the State Treasury declined to enforce the judgment owing to a lack of budgetary funds, and stated that responsibility for enforcement lay with the State Judicial Administration.
32. On 6 November 2004 the applicant received the sum due to him (payment order no. 163). (The enforcement proceedings lasted from July 2003 to November 2004, that is, for about one year and four months.)
33. The relevant provisions of the Constitution of Ukraine read as follows:
“All expenditure by the State for social purposes, and the amounts and aims thereof, shall be determined by the State Budget Act.”
“Everyone shall have the right to work, including the possibility to earn his or her living by labour which he or she freely chooses or to which he or she freely agrees.
... The right to timely payment for work shall be protected by law.”
“The independence and immunity of judges shall be guaranteed by the Constitution and the laws of Ukraine.
... Influencing judges in any manner shall be prohibited.”
“Justice shall be administered by professional judges and, in cases determined by law, by lay assessors and jurors.
Professional judges shall not belong to political parties or trade unions, take part in any political activity, hold a representative mandate, occupy any other paid position or perform other remunerated work except in the academic, teaching and creative spheres. ...”
“In the administration of justice, judges shall be independent and subject only to the law.”
“The State shall ensure the funding and proper conditions for the operation of the courts and the activity of judges. Expenditure for the maintenance of the courts shall be allocated separately in the State budget of Ukraine. ...”
34. Section 123 of the Judiciary Act provides that judges' salaries and social-security benefits shall be such as to ensure their financial independence and shall be determined in accordance with the Status of Judges Act. The amount of a judicial salary cannot be reduced.
35. The relevant provisions of the Budgetary Code read as follows (Law no. 2542):
“... Budgetary funds shall be spent for the purposes determined by budgetary allocations only...”
“...Budget commitments can be undertaken and payments from the State budget made only in so far as budgetary allocations exist for these purposes.”
36. The State Budget Act provides that the writing-off of funds from the State budget pursuant to a court judgment delivered in favour of the employees of an organisation in receipt of budgetary funds, who are entitled to certain benefits, shall be carried out from the single treasury account of the State Treasury at the expense and within the limits of the budget allocations fixed for financing that organisation.
37. The State budget provided UAH 1,067,200 for the enforcement of judgments awarding judicial salaries and benefit arrears.
38. Section 20-1 of the Law provides that the bailiffs' departments of the Ministry of Justice shall be responsible for the enforcement of judgments concerning the debts of the executive branch of Government.
39. The Decree provides that the State Judicial Administration shall be responsible for organising the financial planning and accounting of the courts and for preparing an estimate of the courts' budgetary needs.
40. In accordance with section 4 of the Regulations, the State Treasury is responsible for the implementation of the State budget and for monitoring its expenditure.
41. The relevant extracts from the Recommendation read as follows:
1. Proper conditions should be provided to enable judges to work efficiently and, in particular, by:
...
b. ensuring that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities; ...”
42. The relevant extracts from the Explanatory Memorandum read as follows:
“29. Status and remuneration are important factors determining appropriate working conditions (see paragraph 1.b). The status accorded to judges should be commensurate with the dignity of their profession and their remuneration should represent sufficient compensation for their burden of responsibilities. These factors are essential to the independence of judges, especially the recognition of the importance of their role as judges, expressed in terms of due respect and adequate financial remuneration.
30. Paragraph 1.b is closely bound up with the reference in Principle I to all decisions concerning the professional life of judges, which obviously includes their status and their remuneration.”
43. The relevant extracts from Chapter 6 of the European Charter on the Statute for Judges, “Remuneration and Social Welfare”, read as follows:
“6.1. Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behaviour within their jurisdiction, thereby impairing their independence and impartiality.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-70765
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NIEDZWIECKI v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall
TEXT: 8. The applicant was born in 1961. At the time the application was lodged he lived in Erlenbach in Germany. He currently resides in Swidnica in Poland.
9. The applicant immigrated to Germany in February 1987. His request for asylum was rejected. His expulsion was, however, suspended under the agreement of the Home Secretaries of the Länder not to expel Polish nationals (“Ostblockbeschlüsse” der Innenminister der Länder). In November 1989 the applicant obtained a provisional residence permit (Aufenthaltserlaubnis). In January 1991, following an amendment of the Aliens Act, he was issued with a limited residence title for exceptional purposes (Aufenthaltsbefugnis). This residence title was renewed every two years, the last time in January 1995 until January 1997. In April 1997 the applicant obtained an unlimited residence permit (Aufenthaltsberechtigung).
10. In July 1995 the applicant’s daughter was born.
11. On 28 July 1995 the applicant applied to the Aschaffenburg Labour Office (Arbeitsamt) for child benefits according to Section 1 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below).
12. On 18 August 1995 the Labour Office dismissed the applicant’s request under Section 1 § 3 of the Child Benefits Act. It noted that the applicant only had a limited residence title for exceptional purposes, and no unlimited residence permit or provisional residence permit, as required under Section 1 § 3.
13. On 12 October 1995 the Federal Labour Office (Bundesanstalt für Arbeit) rejected his objection.
14. The applicant lodged an action with the Würzburg Social Court (Sozialgericht), claiming that he had been residing in Germany since 1987 and that he should, therefore, have the right to child benefits.
15. On 21 April 1997 the Social Court dismissed the applicant’s action regarding child benefits between July 1995 and April 1997. It confirmed that only aliens with an unlimited residence permit or with a provisional residence permit were entitled to the payment of child benefits under Section 1 § 3 of the Child Benefits Act, as in force until 31 December 1995. According to the Social Court, the legislature had only intended to grant child benefits to aliens who were likely to stay in Germany on a permanent basis. Aliens with only a limited residence title for exceptional purposes were, however, not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law. In the present case, the legislature had remained within its wide margin of appreciation in social law matters.
16. On 23 April 1998 the Bavarian Social Court of Appeal (Landessozialgericht) dismissed the applicant’s appeal to the extent that his claims under the Child Benefits Act until 31 December 1995 were concerned. The Court of Appeal confirmed the lower court’s reasoning, noting that the applicant did not have a stable residence permit in 1995, as his limited residence title for exceptional purposes had had to be renewed every two years. Likewise, referring to the wide margin of appreciation of the legislature, it took the view that Section 1 § 3 of the Federal Child Benefits Act was compatible with the Basic Law. In this respect, it considered that until December 1995 families had benefited from child benefits and tax deductions (Kinderfreibetrag) as a system of compensation (dualer Familienlastenausgleich). The applicant and his wife had paid taxes in 1995 but had not obtained child benefits. In the court’s view, this taxation, not the refusal of child benefits, might have violated the Basic Law; however, it was not for the social courts to decide on that matter.
17. On 18 March 1999 the Federal Social Court (Bundessozialgericht) dismissed the applicant’s appeal on points of law.
18. The applicant lodged a constitutional complaint combined with a request for an interim measure. He claimed that the relevant provision of the Federal Child Benefits Act was discriminatory and racist, and violated his right to respect for his family life. In addition, he alleged that the refusal of his request for child benefits infringed the principle of social justice (Sozialstaatsprinzip) laid down in Article 20 § 4 of the Basic Law.
19. On 21 October 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain his complaint and rejected his request for an interim measure.
20. On 3 July 2001 the Würzburg Social Court decided that it was not competent to deal with the applicant’s claims regarding child benefits for the period after 1 January 1996 and transferred the proceedings to the Nuremberg Tax Court (Finanzgericht). The proceedings before the Tax Court are still pending.
21. Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force until 31 December 1995, provided for the payment of child benefits which are financed by the Federation. Section 1, as far as relevant, provided as follows:
“(1) Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ...,
1. who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act,
...
(3) An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...”
22. Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz).
23. By decision of 6 July 2004 (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/07), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act in the above cited version was incompatible with the right to equal treatment under Article 3 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006.
24. The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-114454
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KHAYROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
JUDGES: Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens;Stanislav Shevchuk
TEXT: 5. The applicant was born in 1968 and is currently serving a prison sentence.
6. On the evening of 3 March 2004 the applicant and two of his acquaintances, H. and L., had a party in L.’s flat. They drank large quantities of alcohol. At some point a fight broke out among them, which resulted in H. being stabbed and suffocated.
7. At about 10 p.m. that evening the police found the body of H. in the flat. They also found the applicant drunk and asleep in the flat. The police decided to arrest the applicant on suspicion of having killed H.
8. At the police station the applicant was given an explanation of the provisions of Article 63 of the Constitution and then questioned on account of the incident. The applicant stated that during the party he was repeatedly humiliated by H. At certain point the applicant lost his patience and started to beat H. to the extent that H. lost his consciousness. However, L. considered that it had not been enough for H. and killed him. After that L. left the flat and the applicant fell asleep. The questioning session was carried out by police officers without a lawyer being present.
9. At 2.30 a.m. on 4 March 2004 an investigator from the prosecutor’s office prepared an arrest report in respect of the applicant. The applicant’s defence rights were explained to him by the investigator, including the right to remain silent and the right to have a lawyer. The applicant signed the relevant explanatory note stating that he did not need the assistance of a lawyer. The investigator accepted the waiver of legal assistance by issuing a separate ruling. The ruling provided that the applicant had refused legal assistance as he did not need it and entirely trusted the investigative authorities.
10. According to the applicant, that waiver was given by him as a result of psychological pressure exercised by the police officers.
11. Between 9.30 a.m. and 10.55 a.m. on 4 March 2004 the applicant was questioned by the investigator. The applicant stated that it had been L. who had killed H.
12. At 12.50 p.m. on 4 March 2004 the investigator arrested L. on suspicion of having killed H. During questioning, L. explained that he had gone out of the flat to buy some more alcohol and, while he was away, the applicant had killed H.
13. According to the applicant, on 6 March 2004 he was beaten up by police officers for the first time with the purpose of making him confess to the murder of H. The applicant felt ill and therefore demanded a medical examination.
14. On the same date a forensic medical expert examined the applicant. According to the report issued by that expert, the applicant had sustained an abrasion to his chest, which was considered to be a light injury that could have been inflicted seven to ten days before the examination; and during the examination the applicant had stated that he had had a fight with H. and that after his arrest he had not been beaten by anyone.
15. Again on the same date the Bakhchysaray District Court (the “District Court”) ordered the applicant’s pre-trial detention for two months.
16. On 7 March 2004 the applicant confessed to the murder. According to the applicant, he wrote the confession after he had been beaten up by a police officer again.
17. On the same date the investigator carried out a confrontation between the applicant and L., in the course of which the applicant admitted his guilt. Following this investigatory action L. was released.
18. The investigator further questioned L.’s acquaintances, the seller of the alcohol, and other individuals who might have known something about the events in question. Expert examinations were carried out. The knife did not have any fingerprints on it.
19. On 13 March and 26 April 2004 the applicant was questioned as an accused. He stated that he did not need a lawyer at that time and referred to his statements given during the confrontation with L.
20. On 27 April 2004 the investigation was completed and the case was sent to the District Court for trial.
21. On 14 June 2004 the applicant complained to the prosecutor’s office on account of ill-treatment by the police officers. In his complaint the applicant alleged that immediately after his arrest he had been beaten up by the police officers, who had also threatened to kill him. Allegedly, they had further forced him to confess to the murder.
22. On 6 July 2004, at the request of the applicant, his brother was admitted to the proceedings as defence counsel.
23. When examined by the District Court, the applicant denied any involvement in the crime. He stated that he had been subjected to ill-treatment and that his right to a lawyer had been breached. According to the applicant, he also orally requested that L. be examined by the court. The request was refused.
24. During the trial the District Court examined the evidence in the file. It did not question L. but read out his statements given during the pre-trial investigation.
25. On 8 July 2004 the District Court found the applicant guilty of having murdered H. and sentenced him to ten years’ imprisonment. In its findings the District Court relied on the applicant’s confession and the other self-incriminating statements given by him during the investigation. It also referred to L.’s statements given during the investigation, including those given at the confrontation with the applicant, to the forensic medical examination establishing the cause of H.’s death, and to other indirect evidence.
26. The applicant appealed, claiming that the District Court had failed to assess the evidence properly and had misinterpreted the facts. In particular, the applicant asserted that the District Court had failed to pay due attention to the fact that his submissions during the trial had contradicted L.’s statements and that it had not considered whether L. might have committed the murder. The applicant further contended that his self-incriminating statements had been obtained through ill-treatment and in breach of his right to legal assistance. He asserted that his ill-treatment had been evidenced by the forensic medical report of 6 March 2004.
27. On 5 October 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) considered the applicant’s appeal and dismissed it as unsubstantiated. According to the applicant, during the appeal proceedings he was assisted, in addition to the assistance provided by his brother, by a legal-aid lawyer.
28. In its decision the Court of Appeal noted that the applicant’s guilt had been well established by the District Court and his contention of having been ill-treated by the police was unfounded. In particular, the forensic medical report of 6 March 2004 suggested that the abrasion on his chest had been sustained well before his arrest. As to the absence of legal assistance during the investigation, the court noted that the case file contained waivers of the right to legal assistance signed by the applicant.
29. The applicant appealed on points of law, claiming in particular that: he had been beaten up by police officers to make him confess to the murder; his defence rights had not been assured during the investigation; the lower courts had failed to question all the witnesses and had not examined all the material and documentary evidence; and the courts had not verified whether L. might have committed the murder.
30. On 17 July 2005 the prosecutor’s office refused to open an investigation in respect of the alleged ill-treatment of the applicant.
31. On 22 November 2005 the Supreme Court considered the applicant’s appeal on points of law and dismissed it as unsubstantiated. It found that the trial court had legitimately convicted the applicant on the basis of his self-incriminating statements, which had been further corroborated by L.’s statements and other indirect evidence. The Supreme Court did not find any procedural violations which could give grounds for quashing the decisions of the lower courts.
32. On 6 June 2006 the applicant asked the Supreme Court for an extraordinary review of his case.
33. On 22 June 2006 the request was refused.
34. Following his arrest on 3 March 2004, the applicant was placed in the Bakhchysaray Temprorary Detention Centre (“the ITT”), where he was allegedly held with other detainees suffering from tuberculosis.
35. On 10 March 2004 the applicant was diagnosed with infiltrative tuberculosis of the upper part of the right lung.
36. On 16 March 2004 the applicant was transferred to the Simferopol Pre-Trial Detention Centre (“the SIZO”).
37. On 5 April 2004 the applicant was diagnosed with tuberculosis of the right lung and registered as a patient at the tuberculosis dispensary.
38. On 27 April 2004 the doctor recommended that the applicant be provided with anti-tuberculosis treatment at a specialised hospital. The applicant stayed in the SIZO, where he was examined and treated at the medical unit.
39. On 23 November 2004 the applicant was moved to Simferopol no. 102 Prison (“Simferopol Prison”), where he was regularly X-rayed and provided with the following courses of medical treatment:
- from 1 April to 31 May 2005 (treatment with isoniazid);
- from 20 September to 10 October 2005 (treatment with isoniazid);
- from 3 March to 31 May 2006 (treatment with isoniazid);
- from 1 September to 30 November 2006 (treatment with isoniazid and pyrazinamide);
- from 3 March to 31 May 2007 (treatment with isoniazid and pyrazinamide);
- from 3 September to 30 November 2007 (treatment with isoniazid and pyrazinamide);
- from 3 March to 30 May 2008 (treatment with isoniazid and ethambutol);
- from 1 September to 28 November 2008 (treatment with isoniazid and ethambutol);
- from 2 March to 29 May 2009 (treatment with isoniazid and ethambutol);
- from 3 September to 30 November 2009 (treatment with isoniazid and ethambutol);
- from 3 March to 31 May 2010 (treatment with isoniazid and ethambutol); and
- from 1 October to 28 November 2010 (treatment with isoniazid and ethambutol).
40. According to the Government, the applicant was X-rayed on 5 August 2010 and his chest did not display any signs of disease.
41. The relevant provisions of the Constitution read as follows:
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.
In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.”
“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.
A suspect, an accused, or a defendant shall have the right to mount a defence.
A convicted person shall enjoy all human and citizens’ rights, except for the restrictions determined by law and established in court judgments.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
6-3-d


ITEMID: 001-113391
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF R.P. AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The first applicant (“R.P.”), the second applicant (“A.P.”), the third applicant (“M.P.”) and the fourth applicant (“B.P.”) were born in 1985, 1982, 1950 and 1941 respectively. All four applicants are British citizens who currently live in Nottingham, England.
6. A.P., M.P. and B.P. are, respectively, R.P.’s brother, mother and father.
7. On 7 May 2006 R.P.’s daughter (“K.P.”) was born prematurely at 27 weeks’ gestation. The birth was unexpected as R.P. had not known that she was pregnant. R.P. was not in a relationship with K.P.’s father and he played no further part in the proceedings.
8. As a consequence of her premature birth, K.P. suffered from many serious medical conditions. She had serious chronic lung disease (broncho-pulmonary dysplasia), which rendered her oxygen-dependent, she had bleeding on both sides of her brain (bilateral intraventricular haemorrhage), she was immuno-suppressed and therefore very susceptible to infection, and she had a congenital heart defect which was repaired by surgery on 6 June 2006. Although her health improved as she developed, she continued to require skilled and labour-intensive day-to-day care. She was regarded as at high risk of cot death and initially required feeding through a nasal-gastric tube.
9. It was observed that from K.P.’s birth until 22 August 2006 R.P. was only visiting K.P. for 1-2 hours a day. She had to be prompted to visit for longer periods and it was noted that she could not complete basic care tasks without prompting and support. A multi-agency meeting took place on 22 August 2006, at which the hospital drew up a schedule of tasks which R.P. would need to demonstrate she could satisfactorily complete before K.P. could safely be discharged into her care. A “core assessment” prepared at this time recorded that R.P. had previously been involved with the local authority’s mental health services and was believed to have learning disabilities; that her relationship with A.P., M.P. and B.P. fluctuated, with allegations having been made of violence and aggression; that there were concerns about her relationship with K.P.’s father; and that M.P. and B.P. were unsuitable to care for K.P. because of poor household conditions and concerns about family dynamics.
10. On 30 August 2006 a social worker met with R.P., M.P. and B.P. to discuss the local authority’s concerns as to the care of K.P. It was noted that R.P. had difficulty understanding and articulating the nature and extent of K.P.’s health needs and refused to accept that she needed help to care properly for her. However, she did agree to participate in a Parenting Assessment Manual (“PAM”) Assessment, which was a tool designed to assess parents with learning disabilities. The assessment, which was completed on 1 September 2006, concluded that R.P. struggled to complete care tasks for R.P. and demonstrated little understanding of her care needs.
11. On 8 September 2006 care proceedings were commenced in relation to K.P. At this stage the aim of the care plan was to identify how the local authority could keep K.P. alive and safe in a home environment while R.P. was given the opportunity to develop her care skills. On 15 September 2006 an interim care order was made in favour of the local authority and on 23 November 2006 K.P. was discharged from hospital into the care of foster parents.
12. R.P. instructed a solicitor (“S.C.”) to represent her in the care proceedings. Both S.C. and her very experienced counsel developed serious concerns that R.P. was unable to understand the advice she was being given. Pursuant to a court order, S.C. and the local authority jointly instructed a consultant clinical psychologist (“H.J.”) to assess R.P. Prior to being assessed, attendance notes from both the counsel and S.C. indicate that they informed R.P. that the purpose of the assessment was to determine whether or not she had capacity to provide instruction and, if she did not, the Official Solicitor would have to be appointed to act on her behalf.
13. In her report H.J. found that R.P. had a significant learning disability and concluded:
“Because of the difficulties [RP] has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.”
14. On 26 October 2006 S.C. wrote to the Official Solicitor to advise him of the contents of H.J.’s report. On 31 October 2006 the Official Solicitor indicated that he would consent to act on behalf of R.P. if invited to do so. On 7 November 2006 Nottingham County Court invited the Official Solicitor to act for R.P. and he formally consented to act as her guardian ad litem on 11 December 2006. In accordance with his usual practice, a case worker (“LM”) wrote to S.C. to confirm that she was to be instructed by the Official Solicitor on behalf of R.P. She enclosed with the letter a further letter and leaflet to be given to R.P. The letter stated that:
“You may already know that on 7 November 2006 the Official Solicitor was asked to act as your guardian ad litem. This means that he will instruct your solicitor for you. He can only do this if a doctor or the court has decided that you cannot do so yourself. In your case, HJ completed a report dated 23 October 2006 which shows that you have a learning disability. If your condition improves and HJ or another doctor says that you can manage on your own, the Official Solicitor will of course step down and no longer act for you.
Your solicitor will keep in touch with you, let you know what is happening and tell the Official Solicitor how you feel about things...
The Official Solicitor will consider the evidence of all the people involved as well as your wishes and views before he files a statement at court on your behalf. He will do his best to protect your interests but must, of course, bear in mind what is best for KP.
If you are not happy with the way in which your case is conducted you should first discuss the matter with your solicitor or with me. If you are still not satisfied you can write to the complaints officer...”
15. The content of the leaflet given to R.P. is set out in full below:
“The Official Solicitor
Who he is, and what he does.
WHO IS THE OFFICIAL SOLICITOR?
Alistair Pitblado is the Official Solicitor to the Supreme Court. It is his job to make decisions on behalf of people who are unable to represent themselves in Civil and Family Proceedings (the client).
WHY THE OFFICIAL SOLICITOR ACTS IN A CASE
The Official Solicitor agrees to act either because the client is under the age of 18, or because the client’s doctor does not think that they can cope with making decisions about their court case. Legal matters can be difficult to understand and very stressful and the Official Solicitor is here to protect the client’s interests.
HOW WILL THE OFFICIAL SOLICITOR HELP?
The Official Solicitor makes decisions about the court case such as whether to bring, defend or settle a claim. We will arrange legal representation in court for the client where he considers this necessary. He will usually ask a firm of solicitors to help him with the case. The Official Solicitor can only make decisions about the questions arising in the court case. He cannot make any other decisions for the client.
WHO CAN I SPEAK TO ABOUT THIS CASE?
Your solicitor should be the primary contact. The Official Solicitor has assistants who help him deal with every case. These assistants are called case managers. The case manager assigned to your case will provide you with details of the solicitors they have appointed on your behalf.
WILL THE CLIENT BE CONSULTED?
Shortly after he agrees to act the Official Solicitor will usually instruct a firm of solicitors as his solicitors, either the solicitors already instructed by the client or new solicitors identified by the case manager. Such solicitors, or a senior solicitor within the firm, should be a member of the Law Society Children Panel or the Resolution (formerly SFLA) Family Panel. The instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager.
Fees and Charges
In the vast majority of cases, the Official Solicitor acts in the capacity of Litigation/Next Friend and instructs outside solicitors. The Official Solicitor does not make any charge for acting in the capacity of Litigation/Next Friend. Where the legal work in a case is conducted in-house, the Official Solicitor will, where appropriate, seek to recover his costs (or in medical cases there is a practice whereby he is entitled to half his costs) using an hourly charging rate. We will write to you separately with further details if this applies in your case.
COMPLAINTS
If you are dissatisfied with the way your case is conducted you should first discuss the matter either with the external solicitor, or with your case manager. If you remain dissatisfied you may write to the Complaints Officer, Official Solicitor’s Office, 81 Chancery Lane WC2A 1DD.”
16. On 19 December 2006 Nottingham County Court directed that H.J. be instructed to prepare a second report considering the propriety of the teaching methods envisaged by the local authority in its parenting assessment. H.J.’s second report, dated 2 March 2007, noted that the teaching methods and materials would “in general be appropriate” and emphasised that simple language, direct instructions and repetition would be needed, along with immediate feedback.
17. On 2 March 2007 a parenting capacity assessment was produced in respect of R.P. The report noted that R.P. had demonstrated commitment to the assessment process and an ability to retain and carry out basic tasks. However, social workers were concerned that R.P. had expressed views of a racist nature, that she sometimes seemed immature and attention-seeking, that she was overly preoccupied with her own health concerns, and that she spoke very negatively about the local authority’s professionals.
18. Reports from R.P.’s contact sessions with K.P. indicated that R.P. showed some signs of improvement, demonstrating some ability to remember what she had been shown and to repeat tasks. However, even after months of regular contact and support R.P. still, on occasion, needed reminding about and prompting to perform basic tasks, especially when something unexpected happened. They also indicated that R.P. occasionally demonstrated a failure to put K.P.’s needs before her own and a lack of awareness of K.P.’s current and future needs. Her attitude towards social workers was also noted to be aggressive, uncooperative and occasionally violent. Consequently, there were concerns about R.P.’s ability and willingness to work with local authority professionals and put K.P.’s needs first. This was of particular concern in light of K.P.’s need for high levels of support.
19. In May 2007 H.J. was asked to produce a third report. The report, dated 2 June 2007, primarily concerned the risks posed by R.P. to K.P. and R.P.’s ability to care for K.P. H.J. was also asked to comment on R.P.’s litigation capacity. She noted:
“1.1 As I have indicated previously RP has a significant learning disability, and she will always need a high level of support in caring for KP
. If she were not receiving this support she would pose a high level of risk to KP’s well-being, which is not due to any desire on her part to hurt KP, but to her limitations, which are too extensive to allow her to parent KP successfully on her own.
1.2 If she were receiving a high level of support this risk could be reduced. The level of support which would be needed for this to happen would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support.
... ... ...
2.3 Having read all the work which has been done with RP and having carefully considered my assessment of her, it is my view that there is no further work which could be undertaken with RP which would increase her ability to care for KP in any significant way.
... ... ...
7.1 As I indicated earlier RP could only care for KP if she had a high level of support. I cannot perceive anything in her circumstances which suggests to me that such a support network is available, and without this no progress can be made towards rehabilitation.
... ... ...
8.1 RP would need 24 hour support, and within this it would be realistic to expect her to assist with KP’s care but not take sole responsibility for this. This would continue to be the case throughout KP’s childhood. If this could be achieved in a natural environment, such as a family, then it might be suitable as a long term prospect, as long as KP had a consistent identified care giver within that arrangement.
... ... ...
9.1 RP does not have the capacity to give informed consent to a placement order. She cannot really understand the proceedings except at a very basic level.”
20. On 11 July 2007 the local authority completed a further core assessment. The conclusion was that:
“The opinion of all the agencies involved with KP’s care in a position to make an informed decision regarding RP’s ability to parent KP is clear. Without a very high level of continuous support and supervision, RP does not have the skills to enable her to successfully parent KP. RP has consistently demonstrated by her behaviour that she does not wish to work in partnership with the agencies who will continue to be involved in KP’s care throughout her childhood. Therefore, we need to look for alternative permanent carers. Maternal grandparents have put themselves forward to be assessed and this is in the process of being conducted. However, the local authority have a number of concerns in respect of their living conditions, RP’s upbringing and the influence that RP still has upon them and how this would impact upon KP if she were to be placed in their care. Although the local authority do not wish to pre-empt the outcome of the initial sessions with the maternal grandparents, there are a number of concerns regarding their interaction and relationship with RP and their own parenting skills. The local authority at this time believe it is in KP’s best interest to be placed for adoption and the matter will come before the adoption panel on 19 July 2007. The local authority will urgently review this if the outcome of the maternal grandparents’ assessment proves positive”.
21. The local authority filed its final care plan on 12 July 2007. That care plan recommended adoption outside the family and it issued proceedings seeking a placement order under section 21 of the Children’s Act 2002. The Official Solicitor consented to act on behalf of R.P. in the placement proceedings as well as in the care proceedings. The application for a placement order was then consolidated with the care proceedings and listed for hearing before a judge.
22. On 6 August 2007 the local authority filed a kinship assessment of M.P. and B.P. The report indicated that there had been referrals to the local authority concerning M.P.’s and B.P.’s care of R.P. and A.P. It further noted that M.P. and B.P. were unable to control R.P. or manage her behaviour and that they had also intermittently displayed hostility and suspicion towards the local authority. In view of these facts, the local authority concluded that it could not support the maternal grandparents as carers for K.P. On 24 August 2007 a further kinship assessment was filed in respect of A.P. The local authority considered that he was unlikely to have the capacity fully to understand or to meet K.P.’s welfare needs and therefore could not support him as a carer.
23. In a statement to the court dated 17 August 2007, the Official Solicitor indicated that R.P. was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order. However, he also indicated R.P.’s opposition to the orders sought by the local authority, her belief that K.P. should be returned to her care or the care of her family, and her belief that the local authority had not given her a chance to acquire the skills necessary to care for K.P.
24. In a pre-hearing review R.P. agreed with S.C. and counsel that she would not give oral evidence at the hearing but that her wishes would be conveyed to the court by counsel.
25. The hearing took place on 29 August 2007. R.P. was represented throughout by experienced counsel and her views were made known to the court. At the conclusion of the hearing, the judge made a care order, dispensed with R.P.’s consent to the placement order and made a placement order.
26. R.P. applied for permission to appeal to the Court of Appeal and also made an application in the County Court to revoke the placement order. The County Court proceedings were adjourned pending the outcome of the proceedings before the Court of Appeal, which took place in March 2008.
27. The Official Solicitor was notified of the appeal proceedings. He wrote to R.P., informing her of the possibility of free legal representation through the Bar Pro Bono Unit (“the Unit”). When R.P. did not pursue this, the Official Solicitor arranged for the Unit to consider her case. Specialist counsel was appointed and made available to represent R.P. at the hearing. Although R.P. declined his services, he attended the hearing in case R.P. changed her mind. She did not change her mind and instead was assisted in the proceedings by A.P. and Mr John Hemming MP, who acted as her McKenzie friends.
28. In a statement to the Court of Appeal in advance of the hearing, the Official Solicitor set out his standard working practice. He indicated that:
“If there is a conflict in the evidence relating to an adult party’s capacity to conduct the proceedings then I will not accept appointment unless or until that conflict is resolved either by the experts arriving at a consensus, or by determination of the court. I will return to this issue below.
... ... ...
The solicitor, however, remains the primary point of contact for the protected party. My case worker relies on the solicitor to ensure the protected party is involved, so far as is possible, and is informed about the progression of the proceedings, and for communication of the protected party’s ascertainable views, wishes and feelings with regard to the matters at issue. Whilst the solicitor may not take instructions from the protected party I regard the maintenance of personal contact between the solicitor and the protected party during the case as important, to ensure that proper information is provided and to afford the protected party the opportunity to express any concerns about issues raised, or information provided in the proceedings. I expect any concerns raised to be properly considered and communicated to my case worker. My case worker will consider the protected party’s views and wishes on all relevant points but where those views and wishes run contrary to the legal advice received as to the management and progression of the case, it is unlikely that I will prefer the protected party’s views over that advice, as it would not be in the protected party’s interests that I do so.
... ... ...
I am not necessarily involved in the investigation of capacity unless specifically directed to investigate by the court (although my staff are available to offer guidance with regard to the relevant test, if so requested). The evidence as to lack of litigation capacity may therefore be in the form of a medical or psychological report or by way of a report in the form of my standard certificate. The evidence is generally from either a psychiatrist or (in the case of learning disability or acquired brain injury) from a psychologist. In a small number of cases it will be from a general practitioner. In a minority of cases it may be from another clinical specialist such as a neurologist or geriatrician. In the alternative the court may have made a determination, on the existing evidence, that the person concerned is a ‘protected party’ within the meaning of the rules.
If the evidence on capacity to conduct the proceedings is ambiguous, or conflicting, then the Divisional Manager will request further clarification from the person who has conducted the assessment, or refer back to the court for a determination of the capacity issue.
If during the course of the case the solicitor advises the case worker that the protected party may have recovered capacity, the standard instructions provide that the solicitor must obtain further evidence on this point.
If there is evidence that the protected party has recovered capacity, then I will make an application to the court for my discharge. It is of course always open to the protected party at any time during my appointment to apply for my discharge, if of the view that the evidence as to capacity is open to challenge. Similarly if a person comes forward as willing to act in substitution for myself, then an application may be made to substitute for me as litigation friend. My discharge or substitution as litigation friend is for the court to decide.
If my case worker is informed that the protected party asserts his or her own capacity to conduct the proceedings and disputes the existing evidence, then the protected party would be invited to agree to undergo further assessment - for example, through referral to his or her general practitioner or other NHS referral. If the protected party refuses to undergo further assessment or seek further evidence, I have, of course, no power to compel this.
29. At the hearing R.P. claimed that there had been a violation of her rights under Article 6 § 1 of the Convention because, inter alia, she had not been informed that the Official Solicitor would be representing her until after the hearing; the involvement of the Official Solicitor was unlawful as she had the capacity to instruct her own solicitor; the clinical psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister (Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70); and finally, if she lacked capacity, a family member should have been appointed as her litigation friend.
30. In a judgment dated 8 May 2008, the court found that R.P. was fully informed of the involvement of the Official Solicitor and the nature of his role; the clinical psychologist correctly assessed R.P.’s capacity by reference to the Masterman-Lister test, and R.P.’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for K.P. With regard to the merits of R.P.’s case, the court found that the local authority had done what it could to facilitate the return of K.P. to R.P.’s care and had not simply dismissed this possibility out of hand. The available evidence indicated, however, that R.P.’s significant learning disability prevented her from acquiring the necessary skills to provide K.P. with the care that she needed and this was exacerbated by her increasing unwillingness to co-operate with social workers. The court therefore concluded that the Official Solicitor was right to concede that the care and placement orders were in K.P.’s best interests and the judge was right to make the orders. Accordingly, it held that there had been no violation of R.P.’s rights under Article 6 § 1 of the Convention.
31. R.P. applied for leave to appeal to the House of Lords but leave was refused on 22 July 2008.
32. While the Court of Appeal proceedings were ongoing, R.P. issued an application for leave to apply to revoke the contact order. The application was refused on 7 August 2008 and on 22 October 2008 she was refused leave to appeal to the Court of Appeal.
33. On 19 August 2008 R.P. issued an application for more frequent contact with K.P. On receiving notice of the application, the Official Solicitor wrote to the court to say that the question of R.P.’s capacity needed to be decided in the context of the contact application. At a hearing on 27 January 2009, an expert report was produced which indicated that R.P. had capacity in relation to the contact proceedings. However, on 15 May 2009 the application for contact orders was refused and R.P. was refused leave to appeal. In addition, a further application for leave to revoke the placement order was refused and the court ordered that in future R.P. could only apply for leave to revoke the placement order if she could put forward a change of circumstances since the date of the decision.
34. On 23 June 2009 R.P. applied for permission to appeal the refusal to grant her leave to apply to revoke the placement order. Permission was refused on 8 October 2009. On 24 June 2009 she issued an application for permission to proceed with a claim for judicial review, pleading that the local authority was acting unlawfully and unreasonably by proceeding with plans for the adoption of K.P. whilst proceedings were pending before the European Court of Human Rights. Permission was refused on 12 August 2009. On 7 December 2009 R.P. made a further claim for judicial review in respect of the adoption plan but permission was refused on 14 January 2011.
35. R.P. subsequently made a further application for leave to apply to discharge the placement order. On 10 February 2010 the application for leave was refused and R.P. was refused permission to appeal. In the context of those proceedings, the judge noted that “the mother has a sufficient grasp of what she wants to achieve to put forward her case with assistance so that imposing upon her a litigation friend would be quite inappropriate”.
36. On 1 March 2010 K.P. was placed with prospective adopters, who submitted an application for an adoption order in November 2010. An adoption order was granted by the County Court on 14 April 2011 and R.P.’s request for leave to appeal was refused by the High Court. R.P. has subsequently lodged an application for leave to appeal to the Court of Appeal out of time. That application was dismissed on 15 December 2011.
37. Section 31 of the Children Act 1989 provides for the making of care and supervision orders:
“(1) On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority or of a probation officer.
(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.”
38. The Adoption and Children Act 2002 provides for the making of placement orders:
“21 Placement Orders
(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.
(2) The court may not make a placement order in respect of a child unless—
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent’s or guardian’s consent should be dispensed with.
... ... ...
52 Parental etc. consent
(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with.”
39. In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. He is currently appointed by the Lord Chancellor under section 90 of the Supreme Court Act 1981.
40. The Official Solicitor generally becomes involved in litigation because he is invited to do so. It is a matter for his discretion whether he consents to act and he cannot be compelled to act. If he consents to act, he may become involved in proceedings as a “litigation friend”. However, the Practice Direction accompanying Part 7 of the Family Procedure (Adoption) Rules 1991 (“FPR”) provides that the duty of a litigation friend is:
“fairly and competently to conduct proceedings on behalf of the non-subject child or protected party”
and that:
“... all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or the protected party”.
41. Rule 21.1 defines a “protected party” as “a party, or an intended party, who lacks capacity to conduct the proceedings”. “Lacks capacity” is defined by reference to the Mental Capacity Act 2005:
“2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
... ... ...
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.”
42. The leading judgment on the issue of litigation capacity is that of the Court of Appeal in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70. In his judgment, Chadwick LJ noted:
“The authorities are unanimous in support of two broad propositions. First, that mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of the transaction involved when it is explained.
... ... ...
For the purposes of CPR Part 21, the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a next friend or guardian ad litem (or, as such person is now described in the Civil Procedure Rules, a litigation friend).
... ... ...
... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decision which he does in fact make is a decision which would not be made by a person of ordinary prudence.”
43. The United Nations Convention on the Rights of Persons with Disabilities provides as follows:
“Article 1 - Purpose
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
... ... ...
Article 5 - Equality and non-discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.
... ... ...
Article 12 - Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
... ... ...
Article 13 - Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
... ... ...
Article 23 - Respect for home and the family
1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:
a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;
b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;
c) Persons with disabilities, including children, retain their fertility on an equal basis with others.
2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.
3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.
4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.
5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1