ITEMID: 001-72229
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BOGATKINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Galina Nikolayevna Bogatkina, is a Russian national, who was born in 1938 and lives in Nizhniy Novgorod. She is represented before the Court by Ms M. Voskobitova, a lawyer with the International Protection Centre in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 May 1996 the applicant bought a flat on the Artelnaya Street from Mr Zh. for 53,050,000 non-denominated Russian roubles (“RUR”). On the same day Zh. acquired for himself a new flat on the October Boulevard.
On 9 July 1996 Zh. sued the applicant, seeking to have declared the sale of the Artelnaya Street flat void ab initio.
On 12 August 1996 the applicant brought a counterclaim for clear title in the Artelnaya Street flat and Zh.’s eviction from it. She asked for an injunction on all transactions with the October Boulevard flat.
On 13 September 1996 the Nizhegorodskiy District Court of Nizhniy Novgorod issued an interim decision imposing a charging order in respect of the October Boulevard flat and prohibiting notaries public and the State registration authorities from registering any transactions with the flat.
On 16 September 1996 Zh. sold the October Boulevard flat to a third party. On 24 September 1996 the Directorate for Registration and Technical Inventory of the Town Property Management Committee of Nizhniy Novgorod (Управление регистрации и технической инвентаризации Комитета по управлению городским имуществом Администрации г. Н. Новгорода, “the Registration Directorate”) registered the sale.
On 2 October 1996 the applicant asked the Registration Directorate to declare the registration null and void.
On 31 March 1997 a deputy head of the Registration Directorate responded that the registration had been “erroneous” and that the person responsible had been disciplined. He advised the applicant to apply to a court for a declaration of nullity of the transaction and for compensation for the pecuniary damage.
On 29 January 1998 the Nizhegorodskiy District Court of Nizhniy Novgorod found for Zh. It held that the sale of the Artelnaya Street flat had been void ab initio. Zh. retained title to that flat but was ordered to repay the purchase price to the applicant. The applicant’s counterclaim was dismissed.
On 6 April 1998 the applicant instituted enforcement proceedings. As Zh. had little money and no assets, the amount due to her was not recovered in full until 2 April 2002.
On 24 September 1999 the applicant sued in tort the State agency for registration of rights to, and transactions with, immovable property of the Nizhniy Novgorod Region (Государственное учреждение юстиции Нижегородской области по регистрации прав на недвижимое имущество и сделок с ним, “the Registration Agency”). She sought compensation for the pecuniary damage incurred through the unlawful registration carried out by the Registration Directorate on 24 September 1996.
On 19 June 2001 the Nizhegorodskiy District Court of Nizhniy Novgorod gave judgment. It found that Zh. was responsible for the fact that the applicant had not received in good time the amount due to her under the judgment of 29 January 1998. Moreover, although the applicant had become aware of the sale of the October Boulevard flat long before the judgment of 29 January 1998 was issued, she had not sought alternative interim measures. Hence, the Registration Directorate was not liable for the damage incurred by the applicant through Zh.’s persistent failure to repay the purchase price.
On 2 October 2001 the Nizhniy Novgorod Regional Court upheld the judgment, relying on the following grounds:
“As the charging order in respect of Zh.’s flat on the October Boulevard was issued on 13 September 1996, whereas Zh. sold the flat on 16 September 1996, at the moment of the sale the charging order had not yet become effective (the time-limit for lodging an appeal had not expired) and therefore Zh. could sell the flat; moreover, the court rightly found that at the moment of the sale [of the flat] the judgment debt had not yet arisen. The judgment was given on 29 January 1998, but only became effective in April 1998.
Between the date the judgment became effective and the date the enforcement began Zh. could dispose of the contested flat. Thus, it appears from the case file, even before Zh.’s claim was granted, [the applicant] had become aware of the sale of the flat but had failed to undertake any measures.”
The Regional Court confirmed the findings of the District Court as to the absence of the fault on the part of the Registration Directorate and Registration Agency.
Article 133 of the RSFSR Code of Civil Procedure of 11 June 1964 (effective until 1 February 2003) provided that a judge could order an interim measure at the request of a party or of his own initiative. Interim measures may include, in particular, a charging order in respect of the defendant’s property (Article 134).
An interim measure was to be implemented immediately in accordance with the procedure set out for enforcement of judgments (Article 137). An appeal lay against the decision indicating an interim measure; the lodging of an appeal did not suspend the implementation of the measure (Article 139).
A State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failures to act. Such damage is to be compensated for at the expense of the federal or regional treasury (Article 1069 of the Civil Code of the Russian Federation).


ITEMID: 001-69035
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF HORVATHOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1950 and lived in Bratislava. She committed suicide on 28 September 2004. On 25 October 2004 the applicant’s heirs, Ms V. Čillíková (the sister of the applicant) and Mr J. Bôbik (the applicant’s brother) informed the Court of their wish to pursue the application in the applicant’s stead.
6. By a decision which became final on 28 January 1998 the applicant’s and her former husband’s joint tenancy in respect of a flat was terminated. The Bratislava Regional Court decided that the applicant’s former husband should remain the sole tenant of the flat and ordered the applicant to move out of it within fifteen days after she has been provided with alternative accommodation. In the reasons for the judgment the Regional Court explicitly held that the applicant was entitled to use the flat until her former husband found appropriate accommodation for her. However, her former husband did not allow the applicant to enter the flat. She was therefore obliged to temporarily stay at different places including her sister’s flat.
7. On 1 March 2000 the applicant requested the Bratislava IV District Court to enforce the above judgment.
8. On 18 January 2002 the President of the Bratislava Regional Court admitted, in reply to the applicant’s complaint, that the case had not been proceeded with effectively between 1 March 2000 and 10 January 2002.
9. On 9 December 2002, on 16 and 31 January 2003, on 31 March 2003 and on 28 April 2003 the Bratislava IV District Court adjourned the case as the applicant’s former husband failed to appear. The judge had unsuccessfully attempted to have the defendant brought by the police to the hearings held between January and April 2003. According to the applicant, those attempts were unsuccessful also due to the fact that the court had incorrectly indicated the address of the defendant’s employer to the police.
10. A hearing was held on 26 May 2003. Both parties attended. The defendant challenged the District Court judge.
11. On 6 October 2003 the Bratislava Regional Court decided on the request for exclusion of the District Court judge. The decision was served on the defendant on 28 November 2003.
12. A hearing scheduled for 4 March 2004 was adjourned as the District Court judge was ill.
13. On 22 April 2004 the applicant filed an enforcement request under a different provision of the Code of Civil Procedure under which a court can, where possible, authorise the person seeking the enforcement of a judicial decision to have a service carried out by a third person at the expense of the debtor. She also withdrew the authority of her lawyer.
14. On 22 July 2004 the Bratislava IV District Court dismissed the applicant’s request for enforcement of 1 March 2004. The decision stated that the judgment to be enforced did not explicitly order the defendant to put accommodation at the applicant’s disposal within a specific time-limit. On 24 September 2004 the applicant appealed. In January 2005 the applicant’s lawyer informed the Court that the proceedings were still pending before the Bratislava Regional Court.
15. On 8 April 2002 the applicant filed a complaint about delays in the proceedings pursuant to Article 127 of the Constitution. She also claimed 200,000 Slovakian korunas (SKK) as just satisfaction.
16. On 10 July 2002 the Constitutional Court found that the applicant’s right to a hearing without undue delay guaranteed by Article 48(2) of the Constitution and by Article 6 § 1 of the Convention had been violated. The Constitutional Court held that the case was not complex and that no delays could be imputed to the applicant’s conduct. It noted that the only action taken by the Bratislava IV District Court had been a request that the applicant pay the court fee dated 16 November 2001.
17. The Constitutional Court granted the applicant SKK 18,000according to the practice of the European Court of Human Rights under Article 41 of the Convention. Its purpose was to attenuate the non-pecuniary damage sustained by the applicant. The sum was to be paid by the Bratislava IV District Court within two months after the Constitutional Court’s decision became final. In the decision the Constitutional Court also ordered the Bratislava IV District Court to proceed with the applicant’s case without further delay. The decision became final on 12 August 2002.
18. On 28 October 2002 the applicant filed a new complaint with the Constitutional Court. She alleged a violation of her right to a hearing within a reasonable time in that the Bratislava IV District Court had failed to proceed with the case without delay. She further alleged a violation of her right to a fair hearing within a reasonable time and of her property rights in that the District Court had not paid the sum to her as ordered by the Constitutional Court’s decision of 10 July 2002.
19. On 29 January 2003 the Constitutional Court dismissed the applicant’s second complaint. It found that the applicant had, in separate proceedings, requested the enforcement of the sum granted to her and that it therefore could not examine her complaints in that respect. The Constitutional Court further held that, following the final effect of its first finding on 12 August 2002, there had been a delay of more than two months in the enforcement proceedings brought in 2000. However, the overall length of the period under consideration, that is after the delivery of the first finding of the Constitutional Court
20. As the sum granted to her by the Constitutional Court’s finding of 10 July 2002 was not paid to her, the applicant requested that that sum be enforced on 19 November 2002.
21. On 17 December 2002 the District Court paid the sum indicated in the Constitutional Court’s decision to the applicant.
22. On 4 June 2003 and on 17 July 2003 the applicant complained to the police that her former husband had denied her access to the flat in which she was entitled to live. The police found that the conduct of the applicant’s former husband could be qualified as a minor offence and transferred the case to the Bratislava IV District Office. The applicant unsuccessfully complained about the way in which the police had dealt with the case to public prosecutors at two levels.
23. On 24 September 2003 the applicant asked the Bratislava IV District Office to order her former husband not to disturb her in her right to use the flat in question. On 29 December 2003 the Bratislava IV District Office set the case aside. The decision stated that the administrative authority could not deal with it as (i) enforcement proceedings on the point at issue were pending before the District Court and (ii) the Bratislava IV police department were dealing with criminal complaints which the applicant and her former husband had filed against each other and on which no final decision had yet been taken.
24. On 24 October 2003 the applicant claimed compensation for pecuniary damage from the Ministry of Justice before the Bratislava IV District Court. She relied on the State Liability Act of 1969 and on the Constitutional Court’s finding of 10 July 2002 and claimed a sum corresponding to the rent for the flat in which she had the right to live and which she could not use. After the applicant’s death her siblings expressed the wish to join the proceedings as plaintiffs in her stead. The proceedings are pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22964
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: YOUNGER v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Margaret Younger, is a United Kingdom national who was born in 1953 and lives in Cambridgeshire, England. She is represented before the Court by Mr M. Scott, a lawyer practising in London, England.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s son, Stuart Gipp, was found hanging from his shoelaces which were attached to the bolt hole of his open cell hatch while he was in custody at Lion Yard Magistrates’ Court, Cambridge, on 9 February 1999. He died in hospital at 9.55 a.m. on the following day, aged 20.
Stuart Gipp was arrested and taken into police custody at Parkside Police Station at 4.20 p.m. on 8 February 1999. At 5.15 p.m., when his detention was authorised, the arresting officer, Police Sergeant (“PS”) MacLoughlan, remarked in a witness statement that Stuart Gipp was compliant and calm.
In a witness statement dated 21 February 1999 provided by Mr Milsom, Stuart Gipp’s solicitor at the relevant time, he said that he had attended Stuart Gipp at Parkside Police Station at about 7.50 p.m. on 8 February 1999. Stuart Gipp confided in him that he was a heroin user and was just beginning to experience withdrawal symptoms. Mr Milsom asked if he wanted to see a police surgeon and explained to him that the practice of local police surgeons was to prescribe the drug temazepam for withdrawal symptoms. He added that numerous clients of his who had been in the same predicament had told him that temazepam did very little to relieve their discomfort and distress. He further explained that any contact that Stuart Gipp had with the police surgeon would not be confidential, as the surgeon would make an immediate written report on his custody record. He offered the advice that, if the custody sergeant became aware that Stuart Gipp was a heroin user, and that he was unemployed, that would greatly reduce his chances of obtaining bail either from the police or, subsequently, from the court. After some discussion Stuart Gipp told Mr Milsom that he had decided not to call the police surgeon at that time. Mr Milsom described Stuart Gipp as being unhappy and apprehensive about spending a night in police custody. However, he presented himself as rational and articulate.
Stuart Gipp was charged with the offences of dangerous driving, driving whilst disqualified, and driving without insurance or an MOT (a road worthiness certificate) at 10.59 p.m. on 8 February 1999, at which time police bail was refused.
At about 8.15 a.m. on 9 February 1999 Stuart Gipp’s detention was reviewed. At that time he asked to see a doctor for a “personal reason”. PS Sterne, the custody officer, noted on the custody record that he advised Stuart Gipp that he would arrange for a surgeon to see him at the Lion Yard Magistrates’ Court cells, to where he was shortly due to be transferred. At 8.25 a.m. PS Sterne noted the following on the custody record:
“Conferred with police surgeon – Dr Gwynn. Problem is not an emergency. (DP [Detained Person] has stated it is a problem seeing doctor in prison – where he believes he will be going - and wishes to see one before his departure for prison). Issue to be handed over to Group 4 [a private security company that, pursuant to statutory provisions, provides escort and custody services under a contract with the Home Office] who will call a doctor themselves.”
According to a statement made by PS Sterne on 10 February 1999, Stuart Gipp seemed satisfied with the above arrangement. PS Sterne explained that, at the time of requesting to see a doctor, Stuart Gipp stated that he would have waited until he got to prison, but that as it was difficult to see a doctor there he preferred to see one before he got there. It was for that reason that PS Sterne, in consultation with the police surgeon, Dr Gwynn, concluded that the matter was not an emergency.
Dr Gwynn recalled in a witness statement that he was telephoned by PS Sterne at about 8.25 a.m. and told that Stuart Gipp had a personal problem that he wanted to discuss with a doctor and thought that if the court sent him to prison it would be harder for him to talk to one of the prison doctors about it. He was further told that, while Stuart Gipp had been in custody, he had acted at all times in a normal fashion, showing no particular signs of physical or mental distress. Based on that information, Dr Gwynn formed the opinion that medical attention was not urgently required and that Stuart Gipp could be transferred into the care of Group 4 as arranged, ensuring that the day’s court proceedings were not delayed. Dr Gwynn asked PS Sterne to inform Group 4 of Stuart Gipp’s request to see a doctor and left it with them to call him from the Magistrates’ Court later on if he was still required.
PS Sterne commented that, while Stuart Gipp was in his custody, he neither proved to be any problem nor exhibited any visible signs that he had any medical problems, was calm throughout and seemed quite resigned to the fact that he was going to go to prison. PS Sterne proceeded to tell both the civilian detention officer, Mr Miller, and the gaoler, PC Hine, that Group 4 should be informed that Stuart Gipp wanted to see a doctor.
At about 8.47 a.m. Stuart Gipp was handed over to Group 4 custody in order to be transported to court.
According to the witness statement of Mr Miller of 11 February 1999, at the time of his hand-over, Mr Miller explained to the Group 4 officers that Stuart Gipp wished to see the police surgeon on a personal matter the nature of which he would not reveal, that Dr Gwynn had been contacted by PS Sterne and that Group 4 should contact the doctor from the court cells to come out to see Stuart Gipp.
Mr Miller found Stuart Gipp’s request to see a doctor on a personal matter, without revealing what it was, to be very unusual and a factor which he specifically remembered. He also remembered making a flippant comment to one of the Group 4 staff that it was unlikely that they would call out the police surgeon. This resulted from his understanding from other prisoners that Group 4 was reluctant to call out doctors for any matter, by reason of the cost of so doing. Group 4, a private company, was responsible for the costs of the visit of a doctor. The Group 4 member of staff replied that it was unlikely that a doctor would be called.
At about 9.30 a.m. Stuart Gipp arrived at the Magistrates’ Court.
Some time later that morning (recorded in the report carried out by the Prisoner Escort and Custody Services (“PECS”), a division of the Home Office, as being at about 9.50 a.m., but possibly later in the light of the evidence in the witness statement of Mr Milsom set out below), Stuart Gipp asked Principal Custody Officer (“PCO”) Banks whether he could see a doctor. According to his interview with the PECS investigators on 17 February 1999, PCO Banks asked Stuart Gipp to tell him what the problem was. Stuart Gipp did not do so, but just kept saying that he wanted to see a doctor. PCO Banks explained that it was Group 4 policy that a doctor would not be called unless there was something specific to report. As he had only worked for Group 4 for a fairly short time, PCO Banks called PCO Stevens over to speak to Stuart Gipp.
In his interview with the PECS investigators on 18 June 1999, PCO Stevens stated that he asked Stuart Gipp a few questions. On not getting any response, he went into the cell, put his arm around Stuart Gipp and asked him what was wrong. He replied that he was a drug user and did not want anyone to know. PCO Stevens continued to talk to Stuart Gipp for a short while, after which the latter appeared to perk up a little. PCO Stevens stated that he reported the facts to Senior Custody Officer (“SCO”) Davis, who said that she would try to get his case in front of the court as soon as possible. PCO Stevens reported this back to Stuart Gipp who appeared to him to be quite happy.
PCO Stevens denied that PCO Banks had mentioned to him Stuart Gipp’s request to see a doctor on that occasion. However, PCO Stevens stated that he reported both Stuart Gipp’s initial request to see a doctor, which had been passed on to him by the police earlier that morning, and the fact that he was a drug user to SCO Davis. He stated that he did not enter these facts on Stuart Gipp’s Prisoner Escort Record (“PER”). He further revealed that, as a drug user, he was concerned about Stuart Gipp’s health, but that he was not concerned about his safety. He added that Stuart Gipp did not show any signs of being physically unwell and was quite chatty after PCO Stevens had spoken with him.
In her interview with the PECS investigators, SCO Davis denied that she was made aware at any time prior to 3.50 p.m. on 9 February 1999 that Stuart Gipp had asked to see a doctor or that she was ever told that he was a drug user.
At 11.00 a.m. the community psychiatric nurse arrived at the cells. According to SCO Davis in her interview with the PECS investigators, such nurses usually saw any prisoner that they had not seen before, but that was a matter left to their discretion. Group 4 staff only referred a prisoner to the nurse if they had a serious concern about a prisoner or if they had been asked to do so by a solicitor. Stuart Gipp was neither seen by nor referred to the nurse.
At 11.15 a.m. on 9 February 1999 Mr Milsom attended again on Stuart Gipp, in the Magistrates’ Court cells. In his witness statement, Mr Milsom stated that, at that time, Stuart Gipp appeared rather unwell but not dramatically so. Mr Milsom suggested that the time had now arrived for Stuart Gipp to ask the Group 4 custody officers to call a doctor. He explained that the findings of the doctor were unlikely to be relayed to the prosecutor, the court clerk or the magistrates and that a doctor’s visit was unlikely at that stage to prejudice his chances of being granted bail. During that attendance, Mr Milsom stated that Stuart Gipp was calm, rational and responsive. He stated that there was nothing unusual about his behaviour and responses. He was clearly worried about the possibility of being remanded in custody. He further stated that he would think about calling a doctor: one of the factors weighing upon him was that he did not want his mother to know that he was dependent on heroin. However, Mr Milsom told the PECS investigators that during this visit Stuart Gipp told him that he had already requested to see a doctor, but that he had not yet been seen.
Mr Milsom did not express any concerns about the well-being of Stuart Gipp to his custodians at the conclusion of his legal visit at 11.37 a.m. Thereafter, Stuart Gipp’s cell was checked, as was normal, he made a visit to the toilet and he was provided with lunch.
At about 2.50 p.m. Stuart Gipp was produced in court, where an application for bail was made. The magistrates retired for about 20 minutes and refused the application. Stuart Gipp was remanded in custody to Glen Parva Young Offenders Institution (“Glen Parva”) for 7 days. In a statement by Mr Ingle, the Magistrates’ Court clerk, he recalled that at no time during the court hearing was anything said on Stuart Gipp’s behalf to indicate that he was distressed.
The Group 4 officer who accompanied Stuart Gipp to his court appearance, PCO Moore, told the PECS investigators that, on the way to court, he was talking to her without any apparent problem and that during the hearing itself he appeared calm and behaved normally. At the time at which the magistrates retired to consider their decision, Stuart Gipp talked and joked with her. She described him as fine, good-natured and conversational during this period. Once the magistrates announced that he was to be remanded at Glen Parva she described his reaction as follows:
“Almost instantly his demeanour changed in the dock. He became unresponsive, shut down and went quiet. He was not emotional at all and didn’t cry, shout or anything of that kind. He was told to go with the officer as is usual and I went to put the cuff on him and he pulled his arm away, resisting me. I spoke to him kindly and said ‘come on, let’s get you downstairs’. He then let me put the cuff on. As we reached the dock door he wiggled the cuff on his wrist but didn’t really try to get it off... I was talking to him all the time but he didn’t respond to me. He didn’t pull or refuse to come with me, he was just quiet... His reaction was not unusual and didn’t alarm me more than usual.”
The change in Stuart Gipp’s demeanour was not noted on the PER form.
Raymond Gipp, Stuart Gipp’s brother, made a statement after the death in which he described Stuart Gipp’s demeanour in court that day differently. He stated that he was at the back of the court when Stuart Gipp came in and that he appeared upset and looked as if he had been crying and that he put his head down in court and started to cry. He also stated that Stuart Gipp “screamed and screamed” as he went down the corridor with the Group 4 officer after the hearing. He added that Stuart Gipp had never wanted to talk about his experiences at Glen Parva the previous time that he was there and that one of Stuart Gipp’s friends had said that he had said that he would kill himself if he had to go back to Glen Parva.
According to the entries on the PER form, Stuart Gipp was returned to his cell at 3.25 p.m. and Mr Milsom visited him there at 3.35 p.m. PCO Cannon went to open Stuart Gipp’s cell door to allow Mr Milsom to conduct his legal visit. She saw Stuart Gipp with his head in his hands. She informed him that his solicitor had come to see him. He did not respond, but just walked into the interview room without saying anything. In his witness statement, Mr Milsom described that visit. Upon being asked by Mr Milsom, Stuart Gipp stated that he had asked to see a doctor some time previously but that he had not been seen by one. Mr Milsom observed that Stuart Gipp was very unhappy about the decision of the court and stated that he would not be able to stand it. He referred generally to difficulties he had experienced when he was previously at Glen Parva, but did not want to discuss these further. Mr Milsom described the ensuing conversation as follows:
“I told Stuart that in 7 days time we could make another bail application. If that failed we could ask a Judge in Chambers for bail. At that point he said: ‘I may not be here’. I asked him what he meant and he said that he might kill himself. I took this seriously because although he said it in a tone that appeared to lack conviction, he had his head deeply bowed throughout this conversation except when he was smoking a cigarette. He seemed to feel defeated.”
According to the timings on the PER form, the legal visit concluded at 3.45 p.m. At 3.50 p.m., Mr Milsom informed SCO Davis that Stuart Gipp had requested to see a doctor. SCO Davis stated that she was unaware of that request. She further explained that no doctor was available at that time as she had been trying to get one to attend another detainee since 2.50 p.m. without success. Mr Milsom also mentioned that Stuart Gipp was threatening to take his own life. SCO Davis noted on the PER form that he may try to harm himself and, at 3.52 p.m., initiated a self-harm form F2052SH as a result. At about 3.53 p.m., PCO Cannon went to check Stuart Gipp’s cell. Having initially not been able to see Stuart Gipp, PCO Cannon re-checked the cell. As she opened the outer gate, she found Stuart Gipp hanging from his shoe-laces from the bolt hole of the open hatch on his cell door.
Stuart Gipp was cut down and attempts were made to resuscitate him. An ambulance was called, paramedics and police arrived to assist and Stuart Gipp was transported to Addenbrookes Hospital, Cambridge. It was there that he subsequently died.
Two PER forms were created in respect of Stuart Gipp. According to the Government, the second form was created after Stuart Gipp had hanged himself, but before he died. This was because the first form was taken by the police for the purpose of the police investigation into the hanging.
The front page of the first PER form contains a tick next to the box marked “no known risk”, which the Government state was filled in by Mr Miller at the time that Stuart Gipp was handed over to Group 4 custody. There is also a tick by the box marked “suicidal/self harm” and, under the box marked “further information” are recorded the words “may try to harm himself”. None of the entries on the front sheet of the form are timed. On the second page of the form appear timed entries of various events between 8.47 a.m. and 4.15 p.m., at which time it was noted that the police arrived. This includes an entry timed at 3.50 p.m. that Mr Milsom had stated that Stuart Gipp may try to take his own life.
The front page of the second PER form contains only Stuart Gipp’s personal details and a record of his property. The timed entries on the second page of the form commence at 4.15 p.m.
PECS carried out an inquiry into Stuart Gipp’s death. The resulting report was handed to the coroner on 26 August 1999. A copy of the report was forwarded to the applicant’s solicitors on 17 November 1999 and received by them on 18 November 1999.
The report made, inter alia, the following findings:
– the police did not hand over to Group 4 a copy of the PER form or the police custody record relating to the time that Stuart Gipp was held at Parkside Police Station, nor was the request to see a doctor while in police custody recorded on the PER form by the police;
– the PER form failed to record the following matters, all of which should have been recorded: Stuart Gipp had requested to see a doctor, both in police custody and later that morning in the Magistrates’ Court cells, Stuart Gipp was a drug user and PCO Stevens was concerned about Stuart Gipp’s health, not his safety, and Stuart Gipp’s demeanour had changed following his remand by the court to Glen Parva;
– Stuart Gipp was not referred to the community psychiatric nurse;
– on finding Stuart Gipp hanging, the staff handling the situation worked with speed and skill and did all that they could to revive him.
The report also referred to a memorandum to all Group 4 court and escort staff in area 4 dated 10 January 1999 (one month before Stuart Gipp’s hanging) which stated as follows:
“Cell Door Hatches
With immediate effect all hatches in cell doors are to remain in the closed position when the cell is occupied.
Any faults in hatches are to be reported immediately to the Court Manager.”
The memorandum did not give any indication that the reason for the change in practice regarding cell hatches was a suicide prevention measure designed to ensure that all potential suspension points within the cell were eliminated, thereby reducing or eliminating the opportunity for acts of self-harm. The PECS report recommended that all court escort contractors should be alerted to the risk and dangers posed by allowing a cell door hatch to be in the open position and that, unless further close supervision was available, the cell door hatch should be closed.
On 19 and 20 January 2000, an inquest was heard into Stuart Gipp’s death by the Cambridgeshire Coroner, sitting with a jury.
At the inquest, the Group 4 staff stated in evidence that it was the practice to keep all cell hatches open at Cambridge Magistrates’ Court. They further stated that they were unclear as to what general policy, if any, Group 4 had regarding cell hatches. All Group 4 staff who gave evidence at the inquest were either uncertain as to whether the memorandum had been brought to their attention prior to Stuart Gipp’s hanging, or adamant that it had not been. They were further unclear what training, if any, they had received on the suicide risks of open cell hatches. SCO Davis, who had overall responsibility for the safety of prisoners in the custody of Group 4 at the Magistrates’ Court, testified at the inquest that she had still, almost one year after Stuart Gipp’s death, not been made aware of the purpose of the memorandum.
In delivering a verdict that Stuart Gipp had killed himself, the jury found that failures of responsible persons to follow some procedures and Stuart Gipp’s knowledge of his place of detention contributed towards his death.
On 23 September 1999 the applicant instructed a firm of solicitors to advise and assist her in connection with the inquest into her son’s death. The applicant was advised that neither she (not being a dependant of Stuart Gipp) nor Stuart Gipp’s estate had any viable cause of action for damages which would justify the grant of a civil legal aid certificate on a cost benefit analysis. That advice was re-iterated to her by her solicitor on 23 February 2000 and by counsel on 3 March 2000, following her receipt of the PECS report on 18 November 1999 and the inquest. She was therefore unable to pursue any action which would have examined the liability of Stuart Gipp’s custodians for failing to prevent him from killing himself in custody and which would have afforded the possibility of compensation in respect of his death.
The applicant lodged her application with the Court on 21 March 2000.
The duty to hold an inquest arises under section 8 of the Coroners Act 1988. Where there is reasonable cause to suspect that the deceased died in prison the coroner is obliged to hold an inquest together with a jury.
Inquest proceedings are directed solely to ascertaining the following limited matters: (i) who the deceased was; (ii) how, when and where the deceased came by his death (“how” meaning “by what means” as opposed to “in what broad circumstances”) and (iii) the particulars required by the Registration Acts to be registered concerning the death (Section 11(5) of the Coroner’s Act 1988 and rule 36 of the Coroners Rules 1984, as interpreted by R. v. North Humberside and Scunthorpe Coroner, ex parte Jamieson [1995] QB 1 (“ex parte Jamieson”)).
The Court of Appeal in ex parte Jamieson defined the role of the coroner as follows at page 26C:
“It is the duty of the Coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.”
Rule 42 of the Coroners Rules 1984 provides:
“No verdict shall be framed in such a way as to appear to determine any question of- (a) criminal liability on the part of a named person, or (b) civil liability.”
Rule 42 was stated to express the following in ex parte Jamieson at page 24B:
“It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame.”
In R (on the application of Amin and Middleton) v. Secretary of State for the Home Department [2002] EWCA Civ 390, the Court of Appeal held that, in the light of the enactment of the Human Rights Act 1998, which came into force in October 2000 and imposed a duty on coroners’ courts to act compatibly with rights set out in the Convention thereafter, in order to satisfy the investigative obligation under Article 2 it would be necessary, in an appropriate case, to permit a jury to return a verdict of “system neglect” in circumstances where, previously, domestic law, specifically ex parte Jamieson, forbade such an outcome (§§ 91 and 92). The Court of Appeal also held in that case that, where a death occurred in State custody, either at the hands of another prisoner or as a result of a suicide, the investigative obligation under Article 2 was engaged (§ 43).
Rule 43 of the Coroners Rules 1984 provides:
“A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly.”
A coroner’s court does not have jurisdiction to award compensation in respect of a death.
Pursuant to the common law, no one can recover damages in tort for the death of another.
The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:
“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
The statutory right of action is however for the deceased’s dependants (section 1(2)) which allows the recovery of their pecuniary loss. If there is no dependency, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at 7,500 pounds sterling) are only available to the parents of a deceased child under the age of 18 at the time of death or to the spouse of the deceased (section 1A(2)). Funeral expenses are recoverable (section 3(5)).
The Law Reform (Miscellaneous Provisions) Act 1934 provides for the survival of causes of action for the benefit of the deceased’s personal estate. Section 1(1) provides as relevant:
“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”
This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous or it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only amount recoverable would be funeral expenses.
It was accepted in the House of Lords case of Reeves v. Commissioner of the Police of the Metropolis [2000] 1 A.C. 360 that there was a common law duty of care upon the police to take reasonable steps to prevent a person of sound mind who was known to be a suicide risk from taking his own life while in custody. The duty had been breached on the facts of the case when the deceased had been able to hang himself as a result of the officers having left the hatch of his cell door open. Liability for the death was shared equally with the deceased, as a result of his voluntary act.
In Orange v. the Chief Constable of West Yorkshire [2001] 3 WLR 736, the Court of Appeal addressed the question, left open by the House of Lords in Reeves, as to whether the duty under consideration in Reeves arose only where the authorities knew or ought to have known that the individual prisoner presented a suicide risk, or whether it was a duty owed to all prisoners in custody. The Court of Appeal held that suicide was not a foreseeable risk in relation to every prisoner and that the obligation to take reasonable care to prevent a prisoner from taking his own life deliberately only arose where the custodian knew or ought to have known that the individual prisoner presented a suicide risk. It further held that the increased risk of suicide amongst prisoners gave rise to an obligation, within the general duty of care of the custodian for the health and safety of the prisoner, to take reasonable steps to identify whether or not a prisoner presented a suicide risk. As, on the facts, the police had been justified in concluding that the deceased was not a suicide risk, no duty of care was owed to him to prevent him from taking his own life and therefore it was not a breach of any duty to permit the deceased to retain his belt or to have placed the deceased in a cell in which the gate on the door, from which the deceased had hanged himself using his belt as a ligature, did not comply with recommendations contained in Home Office circulars. As Mrs Orange elected not to petition the House of Lords for leave to appeal, the issue in Orange has not yet been addressed by the House of Lords.
In Orange the Court of Appeal referred to the Canadian case of Funk v. Clapp (1986) 68 DLR (4th) 229, in which the allegations were that, although the deceased, a prisoner who had hanged himself, was not known to be a suicide risk, the standard procedures in the police operating manual should have been followed. The British Columbia Court of Appeal stated the following principle (cited at page 747 of Orange):
“Suicide being reasonably foreseeable for prisoners as a group, and the defendants not having time to examine each person to see whether or not he is likely to attempt suicide, the reasonable course is to adopt a minimum standard applicable to all prisoners except those who require special attention. The steps outlined in an operating manual seem appropriate for that purpose.”
Home Office Circular No. 50/1998, dated 4 December 1998 and implemented on 25 January 1999, introduced the PER form and described its purpose as follows:
“It is essential that those responsible for the custody and care of a detainee/prisoner are made fully aware at all times of any associated risks from the prisoner and/or of any medical or psychiatric conditions of the prisoner. To ensure that such information is recorded for each prisoner and therefore accessible to all police officers, prison officers or escort custody officers in whose custody the prisoner may be, a form has been introduced for national use by the police, prison, court and escort services. ...
... The PER form is designed for use by everyone who comes into custodial contact with prisoners and should help minimise the danger of relevant information about the prisoner not being passed on to receiving authorities and, importantly, to those officers who take over responsibility for prisoners from others. Correct use of the form should not only ensure that prisoners are given the correct level of care and attention at all stages but that those who have responsibility for custody and transfer are made aware of the risks or potential risks they may face.”
Paragraph 9.4 of Code C of the Police and Criminal Evidence Act 1984 provides:
“If a detained person requests a medical examination the police surgeon must be called as soon as practicable. He may in addition be examined by a medical practitioner of his own choice at his own expense.”
Home Office Circular No. 92/1968, dated 10 April 1968, provides in relevant part:
“Police authorities and police officers are aware of the need to ensure that fittings in cells should not provide opportunity for a prisoner to do himself injury ... Chief Constables are requested to arrange for early inspection of all police cells to ensure that there are no projections or fittings which prisoners might use to cause themselves injury. ...
... where cell doors are fitted with a drop-down service hatch, the hatch should not be left open when the cell is occupied by a prisoner. With the hatch open it would be possible for a person inside the cell to secure a ligature on the handle of the hatch.”
Paragraph 3.4 of the PECS report, headed “Area 4 East Anglia” stated, in relevant part, as follows:
“The Court Escort Contract in East Anglia commenced on 1 July 1995 with a phased introduction over six months. It provides court escort and custody services across the eight counties of Bedfordshire, Buckinghamshire, Cambridgeshire, Essex, Hertfordshire, Norfolk, Northamptonshire and Suffolk.
The contract in Area 4 has been fully operational for just over three years. The contractor is Group 4 Court Services Limited. In each year of the contract operation, Group 4 has undertaken an average of 74,850 prisoner movements and handled an average of 120,661 prisoners. During this period the contractor has been faced with numerous incidents, including attempted suicide and self-harm. The number of attempted suicides/self-harm incidents recorded in Area 4 is illustrated in the table below:
The nature of these incidents varies considerably, ranging from a determined attempt where a prisoner swallowed medication which had previously been concealed about the person, to smaller incidents where individual prisoners have struck hard surfaces causing minor injuries to their hands or grazes to their heads. The contractor has, however, always taken each incident seriously. One has to be cautious given the vulnerable nature of some prisoners, particularly those on remand or appearing at court for the first time. Group 4 Court Services Limited has a very good record of prisoner care.”


ITEMID: 001-4791
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HILTUNEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Finnish nationals, are born in 1948 and 1949, respectively, and live in Helsinki. They are represented before the Court by Ms Christine Hiltunen, Master of Law in Helsinki.

A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants own jointly the real property Hälleberget 1:181 on the island of Svartholmen. The island is part of the Suvisaaristo archipelago in the Gulf of Finland and it belongs to the city of Espoo in the vicinity of Helsinki. The first applicant acquired the property in 1978 together with the second applicant’s mother. The latter donated her part to the second applicant in 1987.
The real property consists of 7,800 m2 and its value is estimated at about FIM 1,500,000 (about the same in FF). In the 1920s, a two-storey house with a surface of 103 m2 was erected. It has been used exclusively as a summer cottage and has been registered as such. On the land there are also accessory buildings with a surface totalling 56 m2.

At the beginning of the 1960s, the City Assembly of Espoo decided to start drawing up a master plan (yleiskaava, generalplan) for the area. On 28 July 1961, following the city’s proposal, the Ministry of the Interior prohibited construction in the area by virtue of the Building Act. This building prohibition was prolonged repeatedly by three-year-long or five-year-long temporary orders. It remained in force until the end of 1980.
In 1978 and 1980 the inspection authorities of the city of Espoo certified that the property in question had been equipped with the required water and waste management systems, if necessary also for permanent habitation. On 3 November 1994, the applicant’s cottage was inspected by the relevant authorities but was found not to meet the requirements of a dwelling for all-year-round use due to insufficient insulation
There are apparently three dwellings for all-year-round use on Svartholmen, these having been constructed in 1939, 1962 and 1965.

On 28 January 1981, the City Assembly of Espoo decided to start drawing up a more detailed town plan (asemakaava, stadsplan) for the area. As a result the area was placed under a building prohibition in accordance with section 42, subsection 2(3), of the Building Act (rakennuslaki, byggnadslag, 370/1958). By virtue of the same provision the building prohibition has been prolonged every other year.
In addition to the building prohibition under section 42, subsection 2(3), of the Building Act, a building prohibition under section 5, subsection 1, of the Building Act is also in force (prohibition on urban development). Exemptions may be granted from both prohibitions.

On 4 September 1985, the City Assembly of Espoo adopted a partial master plan (osayleiskaava, delgeneralplan) for, inter alia, the Suvisaaristo area. On 6 April 1988, the Ministry of Environment refused to confirm the plan, inter alia, in so far as it concerned the island of Svartholmen and another island. The Ministry noted that the plan was largely based on the existence of independent drinking-water and waste-water management systems on each individual property designated for permanent habitation. So far there had existed only one dwelling for all-year-round use on Svartholmen, whereas the master plan had envisaged 21 new ones. Given the topography of the island and the significantly increased permanent habitation, the Ministry considered that the ground water conditions had not been sufficiently investigated.
On 13 June 1989, the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) upheld the Ministry’s decision.
In 1990, the first applicant applied for an exemption from the building prohibition in force pursuant to section 5 of the Building Act. His request concerned the construction of a house with a surface of 280 m2 and intended for all-year-round use. On 16 January 1991, the Ministry of the Environment refused to grant the exemption. On 3 March 1992, the Supreme Administrative Court upheld the Ministry’s decision.
In 1994 the first applicant applied anew for an exemption from the building prohibition in force by virtue of section 5 of the Building Act. His request now concerned the construction of a permanent dwelling with a surface of 190 m2. At the same time, the existing house would be demolished. The City Planning Director of Espoo favoured the request in his advisory opinion of 28 March 1994 to the Ministry of the Environment. The city found that the applicants’ intention to replace the existing building, which was in poor condition, with a new dwelling would be in line with the objectives outlined for the use of the relevant area. Therefore, an exemption from the building prohibition would not create any significant obstacle to the implementation of the planning or other forms of organising the settlement in the area.
On 26 October 1994, the Ministry of Environment refused to grant the exemption. It noted that in 1988 part of the master plan had not been confirmed due to insufficient investigations concerning the groundwater conditions, bearing in mind the topography on the island of Svartholmen and the important growth of its permanent settlement which had been foreseen in the plan. These matters were to be clarified during the process of drawing up the town plan. The Ministry furthermore stressed the need to guarantee the equal treatment of the property owners affected by the building prohibition.

On 8 September 1995, the Supreme Administrative Court upheld the Ministry’s decision.
On 8 July 1997, a regional plan (seutukaava, regionplan) for the Helsinki area, including the island of Svartholmen, gained legal force. In the regional plan the area in question was designated for urban development. This plan did not abolish the prohibition on urban development in force by virtue of section 5 of the Building Act.
Between 1986 and 1997, 18 exemptions from the building prohibition were granted by the Ministry for the Environment on the island of Sommarö in the immediate vicinity of Svartholmen. The permitted construction included, inter alia, changing summer cottages into all-year-round residences.
The area comprising the applicants’ property has not been included in the programme for town planning to be completed during the years 1997-2001.
B. Relevant domestic law
According to section 5 of the Building Act, only an area for which there is a confirmed town plan, building plan or shore plan may be used for urban development (taaja-asutus, tätbebyggelse). For special reasons, exemptions may nonetheless be granted by the competent county administrative board or, in respect of larger cities, the Ministry of the Environment. The relevant local authority shall be consulted regarding any application for an exemption.
According to section 7 of the Building Act, a building permit is required for all new construction. Subject to the municipality’s discretion this requirement may be waived in respect of construction of accessory buildings belonging to an existing dwelling or farm in an area outside a town plan or building plan. Building permits are issued by the local building committees (rakennuslautakunta, byggnadsnämnd).
In considering an application for a building permit the authority shall satisfy itself that the proposed building is in accordance with any confirmed plan and does not contravene any building prohibition or related regulations. In the absence of any obstacles, a permit shall be granted.


ITEMID: 001-92587
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MROZOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1973 and lives in Piastów, Poland.
6. On 28 April 2002 the applicant and a friend were travelling by train from work to his home in Piastów. Supporters of the Legia football team, who were celebrating their victory in the Polish league, were travelling on the same train. Among the football fans there were some hooligans, who started smashing windows and vandalising the carriages. The train attendants called the police.
7. Around midnight the train stopped at Warsaw-Włochy station and the police entered the carriage. The applicant was hit in the face with a truncheon by police officer K. and dragged out of the train onto the platform. He was bleeding heavily but was ordered to lie on the ground. The police officer insulted him. Subsequently, the police officers called an ambulance and the applicant was taken to Wolski Hospital in Warsaw.
One of the supporters, an acquaintance of the applicant, who had protested against the use of force against the applicant, was immobilised by the police officers on the platform and handcuffed.
8. The certificate from the ambulance team stated that the applicant received assistance on 29 April 2002 at 00.40 a.m. at Warsaw-Włochy station. It contained the following description of the applicant’s injuries: wound to the right side of jaw 2 cm long, teeth knocked out (no. 5 upper and nos. 5,6,7,8 lower).
9. On 29 April 2002 the medical certificate from Wolski Hospital stated as follows:
“Condition after being beaten, wound to the jaw. Head injury. Condition after being beaten yesterday. He states that he was hit several times with a rubber truncheon on the head. He did not lose consciousness. Yesterday vertigo and nausea. Today no complaints. X-ray of the head and face with no changes. Difficulties in opening mouth, individual teeth knocked out. A consultation with a face surgeon is recommended. Further care in the district [hospital]. The wound stitched, examination by a surgeon in two days. Under observation for eight hours.”
10. A certificate by a dentist, Dr. E. K., dated 29 April 2002, stated:
“The patient came in the day after he had been beaten. Left cheek swollen. Fractured teeth nos. 4, 6 and 5. Tooth pulp exposed. Teeth loose, second degree.”
11. A certificate by a doctor, E. T., a court expert, dated 2 May 2005, provides as follows:
“[The applicant] was examined on 30 April 2002 and 2 May 2002.
Established:
1) Swollen and painful left cheek.
2) Wound to the chin on the right side, about 2 cm long, stitched.
3) Tooth cavities as described in the dentist’s certificate of 29 April 2002.
[Medical certificates of 29 April 2002 listed and quoted.]
On the basis of the examination and the above-mentioned medical certificates it is established that the [period of] incapacity exceeds seven days.”
12. On 7 May 2002 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to initiate criminal proceedings against the police and in particular police officer K. The applicant asserted that on 28 April 2002 he had been beaten by the police and had sustained serious injuries.
13. On 10 March 2003 a doctor, L. S., submitted a forensic report in which he answered questions put by the prosecutor. The report states as follows:
1. What injuries did the applicant sustain on 28 April 2002?
I establish on the basis of the medical certificates previously referred to that on 28 April 2002 the applicant sustained fractures of teeth 4 and 6 on the upper left side and tooth 5 on the lower left side, a chin wound and a swollen left cheek.
2. Could those injuries have been sustained in the circumstances described by the witnesses?
Yes, the injuries described above could have been sustained in the conditions and circumstances described by the witnesses, that is, as a consequence of a blow by a blunt and solid object that could have been a truncheon of the “tonfa” type.
3. Could they have been sustained during the arrest by police officers K. and C.?
Yes, those injuries could have been sustained during the arrest by those police officers.
4. Did those injuries cause incapacity for a period exceeding seven days?
The above injuries amounted to bodily harm resulting in incapacity for a period exceeding seven days within the meaning of Article 157§1 of the Criminal Code.”
14. On 12 April 2003 the Warsaw District Prosecutor discontinued the investigation into the actions of the police. The prosecutor had questioned several witnesses, including other passengers and police officers C. and K. Police officer K. stated that the applicant had not obeyed an order to show his identification card and had started to struggle with officer C. He had then warned the applicant that he would use a truncheon and had hit him once on the arm. The prosecutor established beyond any doubt that police officer K. had used the truncheon against the applicant. It could not be established where exactly on the train the events had taken place. The applicant maintained that he had been hit next to the door of the train, but other witnesses submitted that he had been inside the carriage or outside on the platform. The prosecutor concluded as follows:
“It appears from the statements of police officers C. and K. that the passengers on the train, the majority of them football supporters, did not comply with their orders. This gave them a ground to apply coercive measures and to use truncheons or handcuffs. Given the aggressive behaviour of the passengers those coercive measures corresponded to the exigencies of the situation and were necessary to ensure that their orders were obeyed.
[It should be concluded] that there is not sufficient evidence that the police officers overstepped their powers in breach of the interest of [the applicant]. Since [the applicant] sustained the injuries as a consequence of the police actions he could seek damages in civil proceedings, as the limitation period has not yet elapsed.”
15. On 26 May 2003 the applicant lodged an appeal against the decision. He submitted that the prosecutor had failed to analyse the facts of the case and to clarify the circumstances in which he had sustained the injuries. In particular it was not explained how the applicant could have sustained head and facial injuries, since the police officer had admitted only to having hit him once on one arm. Moreover, he argued that the police officer had overstepped his powers and that there was no justification for use of the truncheon against him, as he had not provoked it. The applicant also complained that the authorities had failed to take into consideration the fact that he was not a football supporter and had nothing to do with the hooligans who were travelling on the same train.
16
“While it appears from the opinion of the forensic expert that the applicant’s injuries could have been sustained as a consequence of the intervention of the police officers on 28 April 2002, nevertheless, in the light of the evidence collected, it cannot be established that police officers C. and K. overstepped their powers. They acted within their competence and the use of the coercive measures of truncheons and handcuffs corresponded to the exigencies of the situation; that is, to the aggressive behaviour of the passengers. The court considers that, contrary to the allegations made in the appeals, all the necessary steps were taken during the investigation in order to establish the objective truth.
The finding of whether or not [the applicant] had anything to do with the hooligans’ actions, that is, the vandalism of the train, cannot have any bearing on the decision on the merits, in a situation where the police officers were intervening in connection with those events. They were carrying out their duties given the aggressive behaviour of the passengers on the train.
In the light of the above the court found that the impugned decision was correct and decided as in the operative part.”
17. On 30 January 2003 the applicant was indicted before the Warsaw District Court. He was charged with damaging the train carriage and using violence against the police officers.
18. On 14 May 2007 the Warsaw District Court acquitted the applicant of both charges. The court established that the applicant had been calm and “in contrast to other defendants had been sober and had been coming back from work and not from the football match”. As regards the course of the events the court established that during the intervention of the police, police officer K had ordered the applicant, who was standing by the door, to return to the carriage. The court then stated:
“In reply [the applicant] had asked the police officer: “would you hit me, sir?” As [the applicant] had not complied with the order, police officer [K] used a coercive measure, i.e. the “tonfa” truncheon. A blow to the stomach caused [the applicant] to bend forward, and the blows which followed struck his face. Afterwards the applicant was laid out on the platform.”
On the basis of the testimonies of the applicant and other witnesses, which had been considered consistent and truthful, the court established that during the police intervention the applicant had displayed passive resistance and had not used force against the police officers. The court also dismissed the testimonies of the police officers regarding the circumstances in which they had used the truncheon against the applicant as lacking credibility and unconfirmed by other evidence.
It appears that no appeal was lodged against the judgment and that it is final.
19. Section 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police (“the 1990 Ordinance”) provides:
“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.
2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.”
20. Section 13 of the Ordinance, in so far as relevant, provided at the material time:
“2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective.
3 (1) It is forbidden to hit or push with a truncheon against a [person’s] head, neck, stomach and non-muscled and particularly delicate parts of the body...”
VIOLATED_ARTICLES: 3


ITEMID: 001-98020
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BUIJEN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1950 and lives in Amsterdam.
6. On 20 November 2001 the applicant was arrested in Lübeck in Germany. On 21 November 2001 the Lübeck District Court (Amtsgericht) issued a warrant for the applicant's arrest on suspicion of trafficking in and importing narcotic substances. He was subsequently remanded in custody.
7. Following negotiations with the applicant's legal representatives, the Lübeck Public Prosecutor gave the applicant an assurance that the prosecution service would institute proceedings under Article 11 of the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112, “the Transfer Convention”) if the applicant confessed to the alleged crimes. Furthermore, they would refrain from requesting a sentence exceeding eight years' imprisonment.
8. On 25 March 2002 the applicant confessed in writing to having committed the crimes specified in the arrest warrant.
9. On 6 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant.
10. Prior to the oral hearing, the applicant's counsel informed the trial court of the agreement reached between the applicant's defence lawyers and the public prosecution service.
11. During the oral hearing before the Lübeck Regional Court (Landgericht), which took place on 26 August 2002, the applicant gave a full confession. The Public Prosecutor requested a sentence of eight years' imprisonment. According to the transcript of the hearing, the Public Prosecutor moreover declared as follows:
“....the Public Prosecution Office does not see any reason not to proceed in accordance with Article 11 of the Council of Europe's Transfer Convention.”
12. On 26 August 2002 the Lübeck Regional Court, on the basis of the applicant's confession, convicted him of unlawful trafficking in and importing narcotic substances and sentenced him to eight years' imprisonment. The court accepted the applicant's confession as a mitigating factor. The applicant having waived his right to appeal, the judgment became final on the same day.
13. On 28 August 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice to institute transfer proceedings under Article 11 of the Transfer Convention. In his pleadings, the applicant's counsel relied upon the agreement between the defence, the criminal chamber at the Lübeck Regional Court and the Public Prosecutor's Office at the Lübeck Regional Court.
14. On 9 September 2002 the Ministry of Justice acknowledged receipt of the applicant's request and informed him that the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck had been invited to submit comments on it.
15. On 20 February 2003 the Head of the Chief Public Prosecutors stated that he would only endorse a transfer under Article 10 of the Transfer Convention on condition that the Dutch authorities gave an assurance of continued enforcement and did not release him before two-thirds of the sentence had been served.
16. By a letter of 5 March 2003 the applicant reminded the Justice Ministry that, during the oral hearing held on 26 August 2002, the Public Prosecutor had given an assurance that he would support the applicant's request to be transferred under Article 11 of that Convention.
17. On 12 March 2003 the Justice Ministry sent the applicant's submissions to the Head of the Chief Public Prosecutors for comment. They pointed out that it was no longer standard practice in Germany to institute transfer proceedings under Article 11.
18. On 24 April 2003 the Head of the Chief Public Prosecutors submitted a report containing a statement given by the Public Prosecutor at the hearing. The latter stated that, when giving the assurance, he had not known the difference between Articles 10 and 11 of the Transfer Convention and had expected the applicant to be transferred to the Netherlands to serve the sentence imposed by the German courts. It had been important to him to express his view that the applicant should be allowed to serve his sentence in his home country.
19. Based on this statement, the Head of Public Prosecution considered that the applicant could not be under the impression that he had been promised a transfer under Article 11 with binding effect on the Ministry of Justice. Subsequently, the Head of the Chief Public Prosecutors refused to endorse a transfer under Article 11 and suggested a transfer under Article 10 of the Transfer Convention.
20. On 17 March 2003 the applicant asked the Schleswig-Holstein Court of Appeal (Oberlandesgericht) for a judicial determination under section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG, see Relevant Domestic Law, below) with regard to the Public Prosecutor's decision to pursue the applicant's transfer under Article 10 and not, as he had previously been assured, under Article 11 of the Transfer Convention. He submitted that he had only confessed in the light of the Public Prosecutor's assurance that the prosecution service would support his transfer under Article 11, and that the Public Prosecutor's decision to pursue the transfer under Article 10 violated his right to a fair trial under the Convention.
21. On 20 May 2003 the Court of Appeal rejected the applicant's request as inadmissible. Referring to the Public Prosecutor's submissions, the Court of Appeal considered that the Public Prosecutor's comment on the applicant's transfer request did not constitute a judicial decision within the meaning of section 23 of the Courts Act, as it did not concern the domestic administration of criminal justice, but related to a diplomatic relationship with a foreign State. Furthermore, the Convention on the Transfer of Sentenced Persons did not confer any individual rights on the applicant.
22. On 26 May 2003 the applicant requested the Ministry of Justice to reconsider its decision, having regard to the principle of fair trial.
23. On 18 June 2003 the Ministry of Justice informed the applicant of its intention to pursue proceedings under Article 10 of the Transfer Convention, having regard to State practice in relation to the Netherlands.
24. On 1 October 2003 the applicant gave his consent to his transfer under Article 10 of the Transfer Convention. On 6 October 2003 the Dutch Justice Ministry gave its consent to the applicant's transfer under Article 10 of the Transfer Convention.
25. On 22 October 2003 the applicant was handed over to the Dutch authorities and subsequently served the remainder of his sentence in a Dutch prison.
26. On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision of 18 June 2003.
27. On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the applicant's constitutional complaint. According to the Federal Constitutional Court, the applicant had failed to exhaust domestic remedies. With regard to domestic remedies, the Federal Constitutional Court found as follows:
“The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general, in particular foreign policy, considerations..., the evaluation of which belongs to the core area of Government. However, the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby, in particular with regard to the statement made on the day of the trial by the Lübeck Public Prosecutor's Office... It cannot be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority, as well as in regard to the possible legal remedies. Sufficient account is taken of the possible uncertainties in regard to the legal remedy on account of the possibility of a binding referral under section 17a § 2 of the Courts Act. It is reasonable to expect the applicant to have recourse to a disputed legal remedy.”
28. According to the Federal Constitutional Court, it was for the lower courts to decide which court was competent in the applicant's case. These courts had further to consider whether the impugned act interfered with the applicant's right to a fair trial or with the principle of protection of legitimate confidence. Notwithstanding the possibility of lodging a fresh request, the fact that the relevant time-limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible.
29. This decision was served on the applicant's counsel on 10 February 2005.
30. On 14 February 2005 the applicant unsuccessfully lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention.
31. On 20 March 2007 the applicant was released from prison, having served two thirds of his sentence.
32. Section 17a § 2 of the Courts Act (Gerichtsverfassungsgesetz) reads as follows:
“If the invoked court is not competent to adjudicate the case, the court shall decide thus of its own motion after hearing the parties and shall, at the same time, refer the legal dispute to the competent court...The decision shall be binding ... on the court to which the legal dispute is referred.”
Section 23 of the Introductory Act to the Courts Act, in so far as relevant, provides as follows:
“(1) Upon request, the ordinary courts shall decide on the lawfulness of directives, orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law.
(2) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought.”
In accordance with section 26 of the same Act, the request has to be lodged within one month of communication of the impugned administrative act. If a party has been prevented from complying with this time-limit through no fault of their own, they can lodge a request to restore the previous time-limit. However, such a request is inadmissible if it has been lodged more than one year after expiry of the time-limit, with the exception of cases of force majeure (section 26(4)).
33. The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings. The Act merely provides that the authorising authority, which is the Federal Ministry of Justice – which can delegate its competence to the Land Ministry – must send a transfer request to the administering State. If the decision is taken by a Land Ministry, that Ministry, after consulting the public prosecutor's office, exercises discretion with regard both to foreign policy considerations and law-enforcement issues.
34. The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society.
Article 9 (“Effect of transfer for administering State”) reads as follows:
“1. The competent authorities of the administering State shall:
(a) continue the enforcement of the sentence immediately, or through a court or administrative order, under the conditions set out in Article 10, or
(b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
...”
Article 10 (“Continued enforcement”) provides:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1