ITEMID: 001-57634
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF E. v. NORWAY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo
TEXT: 7. The applicant is a Norwegian citizen, who was born in 1948. In 1965 he was involved in a traffic accident in which he suffered serious brain damage, and he subsequently showed a distinct tendency to become aggressive.
In 1967 he was convicted of offences under Articles 227, 228 and 292 of the Norwegian Penal Code (assault and inflicting bodily harm) and sentenced to preventive detention (sikring) for a maximum period of five years in accordance with Article 39 § 1 (e) of the Penal Code. In an expert psychiatric opinion obtained at that time, he was declared mentally ill (sinnssyk) and he spent the period from May 1967 to July 1972 in mental hospitals.
8. From 1973 to 1978 the applicant was detained for a period of approximately four years at either Telemark Central Hospital or Reitgjerdet Mental Hospital in accordance with the provisions of the Mental Health Act (lov om psykisk helsevern).
9. In 1978 the applicant was placed under "judicial observation" (judisiell observasjon) after having assaulted his father. The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity (mangelfullt utviklede og varig svekkede sjelsevner) and that there was a clear risk of his committing further criminal offences.
By a judgment of 26 June 1978 the District Court (herredsrett) of Kragerø convicted the applicant of an offence under Article 228 of the Penal Code. It sentenced him to sixty days in prison and authorised the use of security measures under Article 39 § 1 (a) to (f) of the Penal Code for a maximum period of five years. The judgment pointed out that preventive detention in a prison under Article 39 § 1 (f) was likely to have an adverse influence on the applicant and should therefore only be imposed as an emergency measure. The court added that it expected that the competent authorities would take such measures as were necessary in order to avoid prolonged spells of imprisonment.
10. Following that judgment, the police sought to have the applicant admitted to Telemark Central Hospital, but this was refused by the hospital as it considered E. to be a brain-damaged psychopath for whom psychiatric treatment did not appear to hold out any prospects of improvement.
11. On 3 July 1978 the prosecuting authority decided to detain the applicant in accordance with Article 39 § 1 (e) in a security ward at Ila National Penal and Preventive Detention Institution ("Ila").
12. On 8 September 1978 the applicant requested to be released under protective supervision (sikring i frihet). The Director of Ila forwarded the application to the Ministry of Justice on 18 September, expressing the opinion that although it would not be easy to find an appropriate solution to the applicant’s problems, it did not seem proper to detain him in prison. On 5 October 1978 the Ministry of Justice decided nevertheless that the applicant should remain at Ila until further notice.
13. On 10 January 1979 the applicant’s lawyer, referring to the court judgment of 26 June 1978 (see paragraph 9 above), applied to the Ministry of Justice for the applicant’s release and his placement under protective supervision in accordance with Article 39 § 1 (a) to (c). The application was supported by the Director of Ila and the applicant was released on 24 April 1979 and put under preventive supervision. However, after approximately one week he was back at Ila since he did not comply with the conditions imposed. A new leave-of-absence scheme was arranged. However, the applicant refused to return to Ila when the leave had come to an end, and he was brought back to Ila by the police on 16 August 1979.
14. In a letter of 17 December 1979 to the Ministry of Justice, the Director of Ila recommended that the applicant should be released under protective supervision in accordance with Article 39 § 1 (a) to (c). The Director pointed out that the applicant was obviously a psychiatric case and not suitable for detention in a prison and recommended that the Ministry of Justice should contact the health authorities in order to have the applicant placed in a suitable psychiatric institution.
15. On 21 January 1980 the Ministry of Justice decided, pursuant to Article 39 § 1 (a) to (c), to release the applicant on the condition, inter alia, that he resided at his parents’ home. Owing to a number of violent incidents, the applicant was however rearrested, and by a judgment of 15 June 1980 the District Court of Kragerø sentenced him to ninety days’ imprisonment, which sentence was deemed to have been served in detention on remand.
16. On 24 July 1980 the Ministry of Justice decided to place the applicant in preventive detention once more at Ila in accordance with Article 39 § 1 (e). On 2 June 1981 he was released to his parents’ home under preventive supervision in accordance with Article 39 § 1 (a) to (c).
17. A number of unfortunate episodes led the Ministry of Justice to decide under Article 39 § 1 (e) to detain Mr E. again. The applicant returned to Ila on 17 July 1981.
18. During his placement in the security ward at Ila, Mr E. attacked prison staff on several occasions. The prison authorities sought to have him transferred to Reitgjerdet Mental Hospital. However, such a transfer was considered impossible as the applicant did not fulfil the conditions for admission under the Mental Health Act.
By letter of 16 September 1981 the Director of Ila requested assistance from the Ministry of Justice to have the applicant placed in psychiatric health care. It appears that the Ministry concluded that no transfer to the psychiatric health system could be effected unless the situation developed and the applicant became psychotic within the meaning of the Mental Health Act.
19. On 5 February 1982 the Ministry of Justice decided to apply Article 39 § 1 (f) of the Penal Code, and on 16 February the applicant was sent to Oslo District Prison. On 4 November 1982 he was transferred to Ullersmo National Prison ("Ullersmo").
20. Whilst so detained, the applicant was convicted by the District Court of Asker and Baerum on 18 March 1983 and sentenced to six months’ imprisonment for assaulting prison staff at Ila and Ullersmo on three occasions. The expert psychiatric opinion obtained for the trial concluded, as before, that Mr E. was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity.
With regard to the question of security measures, the court pointed out that the information available showed that detention in a prison or similar institution was inappropriate and had a destructive influence on the applicant. The court found that he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment. It accordingly authorised the prosecuting authority to impose security measures under Article 39 § 1 except, however, detention in a security ward or in a prison under subsections (e) and (f).
21. Having served his sentence the applicant was released on 18 November 1983 and placed in a flat at Kragerø under the surveillance of the local police. However, on 19 December 1983 he was arrested and detained on remand, again charged with offences under Articles 227 and 228 of the Penal Code. A further expert psychiatric opinion was obtained but it reached the same conclusion as the two earlier ones (see paragraphs 9 and 20 above).
22. By a judgment of 20 September 1984 the District Court of Kragerø found the applicant guilty on most of the charges brought against him and sentenced him to 120 days’ imprisonment. Furthermore, the court authorised the prosecuting authority to use any of the security measures mentioned in Article 39 § 1 of the Penal Code for a maximum period of five years. As to the conditions for having recourse to these measures, the court referred to the earlier decisions (see paragraphs 9 and 20 above). However, it found that, having regard to the applicant’s almost total lack of self-control in certain situations and to his physical strength, it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under Article 39 § 1 (e) and (f), should this prove necessary. Apparently there was such a need, since the applicant remained at Ila.
23. The applicant appealed to the Supreme Court (Høyesterett) against the decision as regards preventive detention. In a judgment of 12 January 1985 Justice Røstad stated on behalf of the unanimous court:
"...
I consider it beyond doubt that the scope of the security measures should be extended as set out in the judgment now appealed against. Like the District Court I find that the requirements for imposing preventive detention are fulfilled. [The applicant], who must be considered to have, as required by Article 39 [of the Penal Code], a deviant character, presents a serious danger regarding new offences, including threats - Article 227. I may add that it cannot be considered disproportionate to impose security measures on such a clearly dangerous offender. In my view, the protection of society requires that the authorities should be able to impose security measures considered necessary in order to prevent [the applicant] from committing further serious offences.
In view of the summing-up of counsel for the defence, I would point out that I find no basis for arguing that the decision of a Norwegian court concerning the authorisation to use security measures in a case like the present one would violate [Article 3] (art. 3) of the [...] Convention. It is for the implementing authorities to ensure that the security measure takes a form which in practice not only protects the interests of society but also tries to promote those of [the applicant], including his need for psychiatric treatment.
...
In the present case several persons have pointed out that [the applicant] mainly needs treatment and most of all psychiatric medical care. I agree with these views and I will add that I expect the prosecuting authorities, the prison authorities and the health authorities after consultations to continue to try to find an arrangement whereby preventive detention in a prison can be avoided. A proposal for treatment that was drawn up after a meeting held on 13 November 1984 has been submitted to the Court. It was not possible to implement this proposal as [the applicant] was opposed to it. The proposal entailed his returning to Telemark, where a flat would be bought for [him] at Skien near a psychiatric hospital. The proposal also provided for treatment with drugs and for prompt transfer to preventive detention in the event of a breach of any important conditions, such as those attaching to his stays at Kragerø, or failure to undergo the medical treatment.
The time factor and the serious consequences which continued placement in institutions run by the prison authorities may have for [the applicant] make it necessary that a suitable solution should be found as soon as possible which will take into account the legitimate interests of both [the applicant] and society."
24. On 7 November 1985 Mr E. was transferred from Ila to Ullersmo pursuant to a decision of the Ministry of Justice under Article 39 § 1 (f) of the Penal Code.
After this transfer, the applicant declared that he was prepared to accept the conditions laid down in the scheme mentioned in the above Supreme Court judgment (see paragraph 23). The authorities approached the hospital which they had in mind for supervising the scheme. The hospital replied however that it could not take over responsibility for the applicant until a department for difficult patients had been set up.
The authorities also sought to have the applicant admitted to Reitgjerdet Mental Hospital. However, under the general regulations applicable to that institution, only patients who were "seriously mentally ill" could be admitted. As the applicant was not considered to meet this requirement, the hospital asked the Public Health Department of the Ministry of Social Affairs for a dispensation from these requirements. The Department replied however on 26 February 1986 that it was legally precluded from making such an exception. Nevertheless, the applicant spent twenty-three days at the hospital in April-May 1986. On 6 May his case was examined by the hospital’s Supervisory Board (kontrollkommisjonen), which concluded that it had not been established that the applicant was psychotic or that the other requirements for his staying there were met, and he was accordingly sent back to Ullersmo.
On 29 October 1986 he was convicted by the District Court of Asker and Baerum for having attacked a prison officer and was given a suspended sentence of forty-five days’ imprisonment. On 12 January 1987 he was transferred from Ullersmo to Sunnås Rehabilitation Centre near Oslo in order to receive treatment from a psychologist for fourteen days. Certain examinations were carried out, but the applicant was sent back to Ullersmo after attacking one of the nurses.
25. On 24 February 1987 Mr E. was sent to Reitgjerdet Mental Hospital, where it was established that he was now psychotic. As he thus met the requirements for compulsory placement, he was kept there until 4 December 1987 on which date the hospital concluded that he was no longer psychotic.
26. The applicant nevertheless stayed at the hospital on a voluntary basis, but after some weeks he became aggressive towards other patients and staff. As he refused to be placed in the ward for difficult patients, he was sent back to Ullersmo, still under the authorisation of the Ministry of Justice in accordance with Article 39 § 1 (f) of the Penal Code.
27. With effect from 8 February 1988 the preventive measures were changed. Under Article 39 § 1 (a) to (c) the Ministry of Justice decided that the applicant should be released from Ullersmo, on condition that he lived in a house at Skien under the supervision of the Probation and After-care Service (kriminalomsorg i frihet).
28. On 19 April 1988 the applicant assaulted the social workers supervising him and the Ministry of Justice decided on the same day to replace preventive supervision under Article 39 § 1 (a) to (c) by detention in a secure institution, at least for a short time, in accordance with Article 39 § 1 (f). The applicant was transferred to Arendal District Prison.
29. On 27 April 1988 the applicant instituted proceedings against the Ministry of Justice in the Oslo City Court, claiming that the decision of 19 April 1988 was invalid. While the case was pending, the Ministry decided on 18 May 1988 that the applicant should again be placed under preventive supervision pursuant to Article 39 § 1 (a) to (c). He was consequently released on 19 May 1988 from Arendal District Prison and moved to the house at Skien. On 17 June 1988 he dropped the proceedings he had brought, as he was no longer detained.
30. Following several violent incidents the Ministry of Justice decided on 21 July 1988, in accordance with a recommendation from the Probation and After-care Service, that preventive supervision at Skien should cease and that the applicant was to be transferred to Ila under Article 39 § 1 (e).
Mr E., who at that time was detained on remand charged with several criminal offences, instituted proceedings against the Ministry of Justice in the Oslo City Court on 3 August 1988 - during the court vacation. In his application for judicial review he requested a speedy procedure. He alleged several violations of the Public Administration Act on the part of the Ministry: it had not specified the facts on which its decision to detain him again was based; it had refused him access to relevant documents in the case file; and it had never taken a formal decision, thereby preventing appeal. He also contended that detaining him again was an unreasonably harsh response to his behaviour, especially as the measure was not subject to any time-limit. Finally, he also submitted that the Ministry had circumvented the safeguards in Article 96 of the Constitution by using preventive measures instead of having recourse to ordinary criminal procedure.
The case was initially assigned to one judge but on 8 August was transferred to another. After this judge had returned from holiday on 15 August, he started to arrange for hearings but apparently encountered difficulties in contacting the applicant’s lawyer, and he did not succeed in this until 24 August. On 25 August the summons was served on the Ministry, whose observations in reply were received almost immediately afterwards. The hearing was fixed for the first day acceptable to all concerned, 7 September. At the hearing the applicant and five witnesses gave evidence.
In its judgment of 27 September 1988, dismissing the application, the court stated, inter alia:
"The case concerns the validity of the Ministry of Justice’s decision to change the security measures imposed on the applicant from preventive supervision to preventive detention in a security ward.
...
Article 96 of the Constitution
The court [observes] that security measures under Article 39 cannot be imposed except by order of a court. Where a judgment, as in [the applicant’s] case, authorises security measures under Article 39 § 1 (a) to (f) for a maximum period of five years, this means that the court has decided that [the applicant] may be subjected to different security measures, including placement in a closed ward, for a period which cannot, however, exceed the time-limit fixed. The court’s decision defines the scope of the security measures which can be imposed on the [person] according to the rules set out in Article 39.
The legal provision which empowers the Ministry to change the security measures is to be found in Article 39 § 4, sub-paragraph 2. See also Article 39 § 3, whereby ‘these measures shall be discontinued when they are no longer regarded as necessary, but may be resumed if there is reason to do so’.
The Court does not find that these provisions contravene Article 96 of the Constitution, whereby ‘no one may be punished except by judgment of a court’. The Ministry’s decision under Article 39 § 3 concerning renewed placement in a security ward was based on the decision in the judgment which authorised the use of security measures.
Procedural errors
[The applicant] was clearly informed in advance that the Ministry was planning to consider and decide the question of a change of security measures when he was detained on remand in this connection. This appears from the Kragerø District Court transcripts of 27 June 1988. ...
The witness statements have confirmed that [the applicant] was informed of the change of security measures. The Court finds that the matter has been dealt with properly, having regard to Article 16 ... of the Public Administration Act [forvaltningsloven, Act of 10 February 1967; see paragraph 38 below]. Neither can it be established that the Ministry has failed to consider the provisions of Article 17 ... . In any event, the Court finds that even if [the applicant] had felt a need of further information, Article 41 of the Public Administration Act applies. ...
Fairness of the decision
The decision includes no time-limit, but this does not mean that [the applicant] must expect a placement in the security ward to continue for the remainder of the security period. On the contrary, the Court has been told that a new preventive supervision programme is being considered and that it is intended that a decision should be made to change the security measures to such supervision before the end of October 1988.
Article 39 of the Penal Code does not require a special time-limit to be included in the decision to change the security measures. The law requires only a time-limit for the maximum period. The question of time in connection with a change will depend on how long it takes to organise a new preventive supervision programme. ... The Court does not find that the lack of any time-limit in the decision is a ground for considering it unfair. Nor is it correct to consider the decision unfair because the accusations made against [the applicant] might lead to charges being filed against him. A punishable offence may justify a change to a more severe security measure, but this decision is then based on the aims of the security measures and is not considered as a punishment. If the instant case is pursued and [the applicant] convicted, the question whether it is fair to use both placement for a time in a security ward and punishment will have to be considered when sentence is passed. In such circumstances it will be of importance that [the applicant] has had to undergo the change of security measures. This can be compared with the opposite situation referred to in Article 39 § 5 of the Penal Code."
Mr E. did not appeal against the judgment and remained in custody at Ila.
31. On 21 October 1988 the Ministry of Justice decided that the applicant should be released and placed under preventive supervision pursuant to Article 39 § 1 (a) to (c) of the Penal Code and he was brought back to the house at Skien. However, as on several occasions he violated the restrictions imposed on him the Ministry decided, on 27 December 1988, to detain him at Ila again in accordance with Article 39 § 1 (e). The applicant does not appear to have challenged this decision.
32. On 11 January 1989 the applicant was convicted by the District Court of Kragerø of offences under Article 227 and Article 228 in conjunction with Article 230 of the Penal Code (threats and assault). He was sentenced to 120 days’ imprisonment, which sentence was deemed to have been served in detention on remand, and he continued to be detained at Ila under Article 39 § 1 (e). On 3 February 1990 the prosecuting authorities in Vestfold and Telemark applied to Kragerø District Court for a three-year extension of the Supreme Court’s authorisation to implement security measures from 12 January 1985 (see paragraph 23 above), as this was due to expire on 25 February 1990. On an application by the police, the District Court decided on 12 February that Mr E. should be detained until 26 March 1990, pursuant to Article 171 of the Code of Criminal Procedure. The applicant appealed against this decision to the Agder Court of Appeal (lagmannsret) claiming that this detention was unlawful, inter alia, because there was no legal basis for renewing the authorisation to impose security measures as he was not accused of having committed any new offences of the kind described in Article 39 of the Penal Code. As to this the Court of Appeal observed:
"There is no doubt that it has until now been accepted in Norwegian law that it is possible to prolong the period for which security measures can be imposed, even if the person concerned has not committed any new offence ... The provision of the law that the court shall set a time-limit on the duration of security measures is based, inter alia, on a concern for the convicted person, namely that after a certain time he should obtain a new judicial assessment of whether security measures are still necessary. If this possibility of having a further review by a court did not exist, the alternative would be to allow an authorisation period sufficiently long for the court to feel reasonably certain that there would be no further need to impose security measures after it expired. Under the present system the courts do not have to determine the period on the basis of such considerations and need only specify, initially, a period which in general will probably be shorter than would have been the case if there had been no possibility of having a further review."
33. A further appeal by Mr E. to the Supreme Court was rejected on 16 March 1990. On 14 April 1990, however, the prosecuting authorities withdrew their application, and on the following day the applicant was set free.
34. Article 39 of the Penal Code provides:
"1. If an otherwise punishable act is committed ... by someone with an underdeveloped or permanently impaired mental capacity and there is a danger that the offender, because of his condition, will repeat such an act, the court may authorise the prosecuting authority, as a security measure, to
(a) assign or forbid him a particular place of residence;
(b) place him under supervision by the police or a specially appointed probation officer and order him to report to the police or the probation officer at specified intervals;
(c) forbid him to consume alcoholic beverages;
(d) place him in secure private care;
(e) place him, whenever this is possible, in a mental hospital, sanatorium, nursing home or security ward, in accordance with the general provisions promulgated by the King;
(f) keep him in detention in prison.
...
3. These measures shall be discontinued when they are no longer regarded as necessary, but may be resumed if there is reason to do so. The security measures listed under (a) to (d) may be employed concurrently.
The court shall determine the maximum period for which security measures may be imposed without its further consent.
4. If the court has not decided otherwise, the prosecution may choose between the above-mentioned security measures.
The decision to discontinue, resume or change a security measure shall be made by the Ministry.
Before a decision about security measures or their discontinuance is made, the opinion of a medical specialist shall normally be obtained. The same procedure shall be followed at regular intervals during the period for which security measures are in force.
5. If the act has led to the imposition of a punishment, the Ministry may decide that the punishment shall be remitted, in whole or in part, if security measures are imposed under paragraph 1 above.
..."
35. A decision by a court to impose security measures is subject to the general provisions of the Code of Criminal Procedure (straffeprosessloven) and may be appealed against up to the Supreme Court.
36. Rules concerning changes of security measures are found in Article 11 of a Royal Decree of 1 September 1961, which reads as follows:
"Not later than one year after security measures have been initiated, and subsequently at intervals of not more than one year, the security measures in question shall be submitted to the Ministry of Justice with a statement as to whether their form should remain unchanged or whether they should be replaced by other measures, or whether they should be discontinued. If special reasons so dictate, the matter may be submitted before the specified time-limit has been reached.
The matter shall be submitted by the prosecuting authority or, where the person sentenced to security measures is serving a prison sentence or is subject to security measures in an institution in the prison system, by the director of the institution concerned.
The report of the prosecuting authority shall contain information on the situation of the person sentenced to security measures, and a statement from the probation officer, the Probation and After-care Service, the custodian, or from the hospital or any other institution in which the person sentenced to security measures has been placed.
The report shall be prepared by the chief of police who has been in charge of investigating the case, and sent by him to the public prosecutor (statsadvokaten), who will forward it to the Ministry of Justice."
37. The Ministry will also consider the question of discontinuing or changing the measures upon application by the person concerned. In practice, the appropriateness of preventive detention in a particular case is often reviewed several times a year.
38. The Ministry’s (and also, where relevant, the prosecuting authority’s) decisions are governed by the Public Administration Act; this means, inter alia, that the Ministry has to give the grounds for any change of security measures and that its decision may be appealed to the King in Council. However, the person concerned may also, both before and after exhausting administrative remedies, bring the decision directly before the ordinary courts of justice, which will review its lawfulness exercising the jurisdiction they derive from the unwritten constitutional principle of judicial supremacy, which was established in the middle of the last century.
39. Chapter 33 of the Code of Civil Procedure (tvistemålsloven, Law no. 6 of 13 August 1915) contains special, detailed provisions on judicial review of administrative decisions concerning deprivation of liberty and other coercive measures. However, they only apply when the relevant statutes expressly so provide, for example in the case of detention under the Mental Health Act. They do not apply when the person concerned is placed, as Mr E. mostly was, elsewhere than in psychiatric hospitals, for instance in a security ward or a prison under Article 39 § 1 (e) or (f) of the Penal Code.
40. Proceedings for judicial review under the Constitution follow the provisions of Chapter 30 of the Code of Civil Procedure. In such proceedings the validity both of general regulations and of decisions in individual cases may be challenged.
41. The courts ensure that the administrative authorities have acted within the legal framework by which they are bound.
They ascertain whether the impugned decision or regulation was made by the competent authority and in accordance with procedural requirements, including those contained in the Public Administration Act.
They always have unlimited power to review the facts on which the decision is based. Thus, in cases where the mental capacity of the person concerned is relevant, psychiatric experts may assist the courts as expert witnesses under Chapter 18 of the Code of Civil Procedure.
Nor are there any restrictions on the courts’ competence to review the authorities’ application of the relevant legal provisions (rettsanvendelsesskønn), even where these provisions seem to leave some discretion to the authorities, for instance by referring to such standards as "unreasonable", "unacceptable" or "good business practice". However, as regards purely discretionary administrative decisions, namely decisions or steps in a specific decision-making process which are left unregulated by the relevant law (fritt skønn or hensiktsmessighetsskønn), the courts will usually limit their examination to determining whether or not there has been a misuse of power or whether the decision is manifestly unreasonable.
42. When exercising their control over the public authorities, the Norwegian courts will also as far as possible interpret domestic law in such a way as to conform with treaties binding on Norway, such as the Convention, even if these have not been formally incorporated into the Norwegian legal system ("the principle of presumption").
The Norwegian Supreme Court has thus on a number of occasions examined the conformity of its interpretation of domestic law with Norway’s obligations under international human-rights instruments and in particular under the Convention as interpreted by the Court and the Commission: judgment of 16 December 1961, Norsk Retstidende ("NRt") 1961, p. 1350; judgment of 28 March 1966, NRt 1966, p. 476, containing a reference to the Commission’s decision declaring application no. 1468/62, Iversen v. Norway, inadmissible; judgment of 8 October 1974, NRt 1974, p. 935; judgment of 26 February 1982, NRt 1982, p. 35; judgment of 23 October 1984, NRt 1984, p. 1175, containing references to the European Court’s judgments in the Winterwerp case (24 October 1979, Series A no. 33) and in the case of X v. the United Kingdom (5 November 1981, Series A no. 76); judgment of 15 May 1987, NRt 1987, p. 612, with reference to the Court’s judgment in the case of Klass and Others (6 September 1978, Series A no. 28); the judgment of 16 March 1990 previously cited (see paragraph 33 above); judgment of 16 March 1990 (in case L.nr. 470/1990), with reference to the Court’s judgment in the Hauschildt case (24 May 1989, Series A no. 154).
However, there has been no case in which the Supreme Court has been confronted with a clear conflict between the Convention and domestic legislation.
The Convention’s status as a relevant source of law was endorsed by the plenary court in the above-mentioned judgment of 26 February 1982, which concerned, inter alia, the consequences of water-regulation works on the Alta river. Justice Christiansen stated on behalf of the unanimous court:
"What I said about the limits of judicial review needs to be qualified. In the present case it has been argued that the Sami people are protected against such interferences with their interests as follow from the regulation of the Alta river by virtue of rules of international law which are binding upon Norway. The rules concerning the courts’ power to review the validity of administrative acts do not prevent the Court from fully and comprehensively considering whether the expansion works violate rules of international law [the Convention and the International Covenant on Civil and Political Rights]."
The "principle of presumption" was given particularly clear expression in the above-mentioned judgment of 23 October 1984, which dealt with the question of what judicial review should be available where a person already sentenced to security measures is committed to a mental hospital pursuant to Article 39 § 1 (e). The court first observed that neither the wording of the relevant Act nor its drafting history gave any direct indication as to how the problem before the court should be resolved. The judgment went on:
"The decision to be taken must accordingly take into account all relevant circumstances, in particular the consideration that domestic law must be interpreted, as far as possible, in accordance with those treaties under international law which Norway has ratified, in this instance the [Convention]."
After a comprehensive survey of the relevant case-law of the European Court, the Supreme Court concluded that its interpretation of Norwegian law on the point at issue conformed with the requirements of Article 5 § 4 (art. 5-4).
The relevance of the principle when examining the scope of judicial review required in respect of detention decisions under Article 39 of the Penal Code was also recently mentioned in a concurring opinion in the Supreme Court (judgment of 11 December 1989, NRt 1989, p. 1327). One of its members, Justice Smith, found it necessary to disapprove a statement made in a dissenting opinion in the Court of Appeal to the effect that no judicial review would have been possible of the prosecuting authorities’ decisions regarding security measures under Article 39 of the Penal Code:
"In reply (...) it should be pointed out that the Supreme Court has decided [in the above-mentioned case of 23 October 1984], amongst other things on the basis of Article 5 § 4 (art. 5-4) of the [Convention], as interpreted by the Court and the Commission, that a person subject to security measures and also detained in a mental hospital has the right to obtain a decision at reasonable intervals as to whether continued detention is lawful. I maintain that this right to judicial review which is enshrined in Article 5 § 4 (art. 5-4) and which the Supreme Court has established for one category of persons subject to security measures, must be applied by the courts also in relation to other persons subject to such measures who are deprived of their liberty in other institutions."
43. Where the impugned administrative decision has been concerned only with the application of clear legal provisions, the courts may order the authorities to act in the manner prescribed by the law. In cases concerned with purely discretionary decisions, however, the courts will consider themselves to have this power only if special circumstances obtain; otherwise they will decide only whether the decision is valid or not.
44. According to Chapter 15 of the Law relating to the enforcement of civil claims (tvangsfullbyrdelsesloven, Law no. 7 of 13 August 1915), the court carrying out judicial review, whether at first instance or on appeal, may order interim measures (midlertidig forføyning), such as a stay of execution of a decision.
Furthermore, Article 148 of the Code of Civil Procedure empowers the court to decide, on application, that its judgment shall be enforced before it becomes final "if special circumstances so require".
45. Applications for judicial review of administrative decisions are frequent. In 1985, 225 such applications were made to the courts. For 1986 and 1987, the figures were 218 and 201, respectively. They account for more than a third of all the civil cases heard by the Supreme Court. However, there have been no cases in which Norwegian courts have overruled administrative decisions taken under section 39 of the Penal Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-81801
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TREPASHKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 3 (conditions of detention);Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant is a lawyer and a former officer of the Federal Security Service of the Russian Federation (FSB). At the time of the events giving rise to the application, he was the subject of an unrelated criminal investigation conducted by the Chief Military Prosecutor concerning the period of his service in the FSB (criminal case no. 1). From March 2003 the applicant was under an obligation not to leave his permanent place of residence without the permission of the prosecution or the court.
8. On 22 October 2003 in the evening the applicant was returning from a meeting with the officials of the police department of the town of Dmitrov, in the Moscow Region, where he was assisting his client as a lawyer. The applicant's car was stopped by the traffic police on a road. The police searched his car, nothing suspicious being discovered there. A few minutes later the policemen repeated the search, now in the presence of two attesting witnesses. This time a handgun with ammunition was discovered on the back seat of the applicant's car. The applicant was questioned about this gun; he asserted that it did not belong to him. He also informed the policemen that he was a lawyer and showed his lawyer's identity card. At about 7 p.m. the police opened a criminal investigation into these facts (criminal case no. 2). The applicant was placed in Dmitrov detention centre.
9. In the morning of 24 October 2003, at the investigator's request, the Dmitrov Town Court ordered the applicant's pre-trial detention on the grounds that he was suspected of committing a criminal offence punishable under Article 222 of the Criminal Code (unlawful possession of firearms and ammunition) by up to six years' imprisonment and that there was a risk that he might abscond, interfere with the course of justice or continue his criminal activities. The court also stated that at the time of his arrest the applicant was already the subject of another criminal investigation in the context of criminal case no. 1.
10. The applicant appealed, stating, inter alia, that the Town Court, in finding the detention to be lawful, had failed to give any reasons for its finding. The applicant further alleged that the gun had been planted by the police and maintained that he would never keep a loaded gun in a car which he used to drive his children to school every morning. He also noted that he had five under-age children and that there was therefore no reason to believe that he would go into hiding. He further submitted that he represented clients in forty pending cases and that his arrest would be prejudicial to their interests. Finally, the applicant pointed out that the special procedure for authorising the detention of lawyers had not been followed in his case. He asked the Regional Court to examine his appeal in his presence.
11. On 27 October 2003 the Dmitrov Town Court, after a preliminary examination of the facts of the case, authorised the opening of criminal proceedings against the applicant in connection with the discovery of the gun in his car on 22 October 2003. On the same day the applicant's lawyer lodged an appeal against the detention order of 24 October 2003. In the grounds of appeal he stated, inter alia, that the applicant, as a lawyer, could not have been arrested and then placed in custody without a preliminary court decision authorising his criminal prosecution.
12. On 31 October 2003 the applicant was formally charged under Article 222 § 1 of the Criminal Code. On the same day the Moscow Regional Court examined the appeal against the detention order. Before the court the applicant was represented by one of his lawyers, Mr M. With reference to Articles 44750 of the Code of Criminal Procedure, the Regional Court quashed the detention order of 24 October 2003. The appeal court stated that the applicant, as a lawyer, could have been placed in detention on remand only after a separate court decision initiating criminal proceedings against him or authorising investigative measures in respect of him. In the present case there had been no such decision when the court had ordered his detention. The appeal court ordered the applicant's release and remitted the case to the first-instance court. However, the applicant remained in prison. He submitted that he had received a copy of this decision only on 11 November 2003.
13. On 4 November 2003 the applicant was transferred to the Volokolamsk detention centre. On the same day the Dmitrov town prosecutor applied to the Dmitrov Town Court, seeking an order for the applicant's detention on remand.
14. On 5 November 2003 the Dmitrov Town Court ordered the applicant's continued detention on the ground that he had been charged with a crime of medium severity and might abscond or interfere with the course of justice if released. The hearing took place in the presence of the applicant and two of his lawyers, Mr G. and Mr M. On the same day he was transferred back to the detention centre in Dmitrov.
15. The applicant appealed, repeating the arguments used during his first appeal and adding that, once refused, detention on remand could not be ordered for a second time on the same grounds. The applicant also submitted that neither he nor one of his lawyers, Ms L., had been notified about the hearing and that they had been unable to present their arguments. He also indicated that the Moscow Regional Court's decision of 31 October 2003 ordering his release had still not been executed.
16. On 13 November 2003 the Moscow Regional Court, in the presence of the applicant's lawyers, upheld the first-instance court's decision of 5 November 2003 and sanctioned the applicant's continued detention on remand pending pre-trial investigation.
17. At the end of November the bill of indictment in criminal case no. 1, together with the case file, was forwarded to the Moscow Circuit Military Court. On 1 December 2003 the applicant was transferred to a detention centre in Moscow. On the same day the Moscow Circuit Military Court ordered the applicant's pre-trial detention in the context of criminal case no. 1.
18. On 19 December 2003 the Dmitrov Town Court dismissed a request by the investigator for prolongation of the applicant's detention on remand in the context of criminal case no. 2. However, the applicant remained in custody pursuant to the detention order made by the Moscow Circuit Military Court on 1 December 2003.
19. On 14 January 2004 the defence complained to the Dmitrov Town Court about the period between 31 October and 5 November 2003, when the applicant had been detained without any valid grounds. It is unclear whether this complaint has ever been examined by the court and what the outcome of the examination was, if there was one.
20. On 19 May 2004 the Moscow Circuit Military Court gave judgment in criminal case no. 1. The applicant was found guilty and the court sentenced him to four years' imprisonment in an open colony (колонияпоселение). On 9 September 2004 the Military Division of the Supreme Court of the Russian Federation upheld the judgment.
21. As regards criminal case no. 2, on 15 April 2005 the Dmitrov Town Court found the applicant guilty of unlawful possession of firearms, found in his car on 22 October 2003. The Town Court rejected the applicant's contention that the gun had been planted by the policemen.
22. The applicant appealed. On 1 July 2005 the Moscow Regional Court acquitted him. The Regional Court found that the fact that the bag with the gun had been found in the applicant's car did not necessarily mean that the gun had been put there by him. No fingerprints belonging to the applicant or traces of his sweat had been found on the bag or the gun. There was no evidence that the applicant had been in possession of the gun before his arrest or that he had put it in his car. Moreover, the policemen who had arrested the applicant had insisted that the bag had fallen from the back pocket of the driver's seat. However, a reconstruction of the offence showed that in the circumstances that had been physically impossible.
23. The Regional Court further noted that the Town Court had not accepted either the applicant's version or the account given by the prosecution. In its judgment it had put forward its own version as to how the gun had happened to be in the applicant's car. In particular, the Town Court had found that before leaving the car the applicant had hidden the gun under his cloak, and that during the search the gun had fallen on the floor of the car. However, that version was not supported by evidence, and, moreover, the court had exceeded its powers by extending the factual scope of the indictment. As a result, the applicant was found not guilty.
24. On an unspecified date the applicant brought proceedings claiming one million Russian roubles (RUR) for non-pecuniary damage on account of his unlawful detention between 22 October and 5 November 2003. On 26 September 2005 the Dmitrov Town Court found that the whole period of the applicant's detention on remand, until his acquittal, had been unlawful. As a result, the applicant was awarded RUR 75,000, to be recovered from the Federal Treasury.
25. That judgment was appealed against by the prosecution and by the applicant. On 24 November 2005 the Moscow Regional Court quashed the judgment of 26 September 2005. The Regional Court found that the judgment of the District Court had covered the whole period of the applicant's detention in the context of criminal case no. 2, whereas his civil claim had only concerned the period of his detention between 22 October and 5 November 2003. Furthermore, the Regional Court indicated that from 1 December 2003 the applicant had been in custody in connection with another criminal case (no. 1), which had ended with his conviction. Lastly, the Regional Court indicated that the District Court had failed to summon the representatives of the Federal Treasury. As a result, the case was referred to the Town Court for fresh consideration.
26. In the proceedings before the Town Court the applicant confirmed that his claim only concerned the period between 22 October and 5 November 2003. On 10 May 2006 the Town Court ruled in favour of the applicant. The Town Court found that the applicant's detention had been unlawful, awarding him RUR 30,000 in compensation for the non-pecuniary damage sustained. The applicant appealed, claiming that the award was too small. On 4 October 2006 the Moscow Regional Court upheld the judgment of 10 May, stating as follows:
“... [The first-instance court correctly found that] from 22 October to 5 November 2003 the applicant was detained on remand unlawfully, since, by virtue of the decision of the Moscow Regional Court of 1 July 2005, the judgment of the Dmitrov Town Court [in respect of the applicant] ... was quashed, and the case was closed because the applicant had not been involved in the [alleged] crime.
... [The applicant] was fully rehabilitated in respect of the events which had served as a basis for his detention between 22 October and 5 November 2003...”
The Regional Court concluded that the amount awarded by the Town Court was reasonable.
27. After his arrest on 22 October 2003 the applicant was placed in the detention centre in Dmitrov (изолятор временного содержания УВД г. Дмитров), about 70 km north of Moscow. On three occasions in the following five weeks the applicant was transferred to detention centre ИЗ 50/2, situated in Volokolamsk, about 130 kilometres west of Moscow, and then back to the detention centre in Dmitrov. According to the information provided by the Government, the applicant was kept in custody in the detention centre in Dmitrov from 22 October to 4 November 2003, then from 5 to 10 November, and from 14 to 21 November 2003. The Government further asserted that the applicant had been kept in custody in the detention centre in Volokolamsk from 4 to 5 November, from 10 to 14 November and from 21 to 28 November 2003. The Government did not indicate where the applicant had been detained between 28 November and 1 December 2003, when he had been transferred to detention centre ИЗ 77/1 in Moscow. According to the applicant, during these three days he was in the detention centre in Volokolamsk.
28. The parties submitted differing accounts of the conditions of detention in the detention centres of Dmitrov and Volokolamsk.
29. In his initial submissions to the Court the applicant described conditions in the detention centre of Dmitrov as follows:
“The cell had a dirty wooden floor with puddles of mud ..., insects were everywhere, it was terribly chilly. I was not given a mattress or a chair or even a piece of paper. I had to rest on the wooden floor which was covered in faeces and the blood of crushed bugs. ... Because of the cold I had to remain standing for two days. I could not sleep. Then I cleaned up a place in a corner of the cell with my clothes and took a nap. 30 minutes later I woke up because bugs, lice and some other beasts were crawling over me. ... Since my arrest I have not been able to go for a walk outside the cell. The window is constantly shut and I've lost all sensation of time. Only once have I been brought before an investigator for questioning. ... There is no washbasin in the cell and I have to wash myself using the lavatory. ... My eyesight has become impaired because of the dull light in the cell.”
30. The applicant complained to the prosecutor in similar terms about the conditions of his detention. As a result, he was given a pail of water, washing liquid and a rag to wash the floor.
31. According to the information, provided by the Government, cell no. 7, where the applicant was detained, measures 6.6 square metres. It is equipped with a lavatory, a tap and a sink. The premises of the detention centre are centrally heated. The cell receives daylight during the day and is lit by an electric lamp at night. Upon his arrival at the detention centre the applicant was given bedclothes; however, he refused to use them “as a sign of his disagreement with his arrest”. In the evening of 23 October 2003 his relatives sent him the necessary bedclothes.
32. On 2 December 2003 the Dmitrov town detention centre was examined by a joint commission of the regional Department of the Interior and the Department of Sanitary Control. The inspection concluded that “the sanitary state of the cells is satisfactory, wet cleaning with disinfectants takes place every day; the ventilation is operational”. The commission also noted that the applicant had not been taken outside for a walk because the yard in the detention centre was under construction.
33. In his submissions in reply to those of the Government the applicant insisted that cell no. 7, where he was detained, was smaller than the Government indicated and, moreover, was not equipped with a washbasin. The water from the tap was evacuated through a lavatory drain (труба слива для унитаза), so, to wash himself, the applicant had had to lean over a stinking toilet pan. The toilet was located very close to the applicant's sleeping place, and there was no partition between them. The cell had no radiators or other heating devices; instead, a pipe with warm water passed along the wall. In the applicant's words, the pipe provided only enough heat to warm his hands on it.
34. The applicant further indicated that there had been only one small grilled window in the cell, and there had been no glass in it. In order to keep some warmth within the cell, the grill covering the window was papered over. The applicant did not dare to take the paper off because it was too cold outside. Consequently, there was no natural light in the cell; during the whole period of his detention in Dmitrov the applicant had to read and write by the dull light of an electric lamp. As a result, the applicant's eyesight deteriorated.
35. On 7 November 2003 the applicant complained to the investigator about the absence of any natural light in his cell. The applicant asked to be examined by an ophthalmologist, but his request was refused. Instead, the head of the detention centre recommended that the applicant take “blackberry pills”, which could be procured by his relatives. The applicant indicated that in May 2004 he had undergone an examination by a doctor in detention centre ИЗ 77/1, which revealed the impairment of his eyesight by 0.5 dioptres.
36. On 10 November 2003 the applicant wrote a new complaint to the investigator. He asserted that over the 19 days of his detention he had not been taken out of his cell for outdoor exercise. As a result, his asthma had deteriorated, and he had to use his inhalation spray six times a day, whereas in principle it should not be used more than twice a day.
37. As regards living essentials, the applicant insisted that the detention centre was not equipped with any bedclothes, mattresses or pillows. The Government's assertion that the applicant had refused to take the bedclothes “as a sign of his disagreement with his arrest” he qualified as a blatant lie. In the applicant's words, if a detainee refused to take any objects for personal use provided by the detention centre, that fact was always recorded in a special register. He insisted that after his arrest he had not been provided with any bedding at all. Moreover, on 23 October 2003 the police investigator Mr Z. had confiscated all his clothes; the applicant had been left in the unheated cell in his underwear. Only in the evening of 23 October 2003 had the applicant's wife managed to provide him, through the head of the detention centre, Mr Y., with a pillow, two blankets and a jogging suit.
38. The applicant maintained his initial submissions that cell no. 7 had been full of parasites. The inspection of that cell, referred to by the Government, had taken place on 2 December 2003, more than a month after the applicant had been placed there, and ten days after he left that detention centre. Consequently, that inspection could not have revealed the real situation existing at the moment of the applicant's detention. In support of his assertions the applicant referred to an article published in the daily newspaper Kommersant shortly after his arrest. In that article the applicant's lawyer, Mr G., testified that in the morning of 22 October 2003 he had visited his client (the applicant) in the detention centre in Dmitrov. Mr G. had said to a journalist: “That night [the applicant] got lice and some other insects, they were crawling over him while we were talking. The cell where he is detained is so dirty that he cannot even sit there.”
39. In his initial submissions to the Court the applicant described the conditions of his detention in Volokolamsk as follows:
“In a cell measuring 18 square metres I'm detained with 20 other people, including one mentally ill person (schizophrenic). There is not enough space for sleeping and two people have to sleep on the same bed. There are bugs, lice and cockroaches in the cell. The facility for walking is very small. 20 people can scarcely fit in it, and it is impossible to breathe normally even during the walk because others are constantly smoking. I have bronchial asthma of medium severity and it has lately worsened. I have very severe chest pains. I sent a request for a medical examination to the investigator Sh., but he did not reply. The investigator also rejected my request for an eye test. Because of the shortage of spoons and mugs we have to use them in turns. I still cannot obtain from the administration a spoon, a mug, and a bowl for my own use, or a bed sheet, a pillowcase or a blanket.”
40. On 1 December 2003 the applicant wrote a letter to the Ministry of Justice describing the conditions in the detention centres in Dmitrov and Volokolamsk. He repeated his complaints about the overcrowding in the cell and the lack of living essentials available to the detainees. In his submission, on certain days the number of detainees amounted to 25 people, and they had to take turns to sleep. The detainees slept on four metal shelves stacked on top of each other, which were very short and uncomfortable. The mattress he was provided with looked like a filthy rag with stains of urine. The padding inside the mattress became so matted that it felt like sleeping on a pile of stones. Although the cell was full of lice, the administration did not provide the detainees with insecticides and prohibited their use in the cell. He was afraid of being infected with an insect-borne disease.
41. He also complained that on several occasions in the course of being transported to another detention centre or the court he had been placed in a very small room (70 x 120 cm) without light, water or food. He had been kept in this room for up to eight hours, without being able to stretch his legs while sitting. This room was not equipped with a lavatory, and, owing to the understaffing of the detention centre, the applicant had to wait two hours to be taken to the toilets.
42. According to the information provided by the Government, upon his arrival at detention centre ИЗ 50/2 the applicant was examined by a doctor. The Government produced a medical certificate, issued by the prison administration, which stated that “following a visual examination, no signs of bronchial asthma were detected”. According to this certificate, the applicant had no asthma attacks during his detention and his eyesight did not deteriorate.
43. In the detention centre in Volokolamsk the applicant had been placed in cell no. 101, measuring 20 square metres, and allocated for former officials of State law-enforcement agencies. This cell was equipped with a lavatory, a shelf for storing foodstuffs, and a sink with hot and cold running water. During the applicant's detention the number of his cellmates varied from 14 to 20. On 20 October 2003 the administration of detention centre ИЗ 50/2 carried out an inspection of this cell. The administration concluded: “The sanitary condition of the cell is in accordance with established standards, the plumbing and water supply are operational, no synanthropic arthropods were detected.”
44. The Government further indicated that the applicant had been provided with all living essentials. In support of this assertion, the Government produced a special register in which the administration of the detention centre recorded objects given to detainees. According to this register, on 5 November 2003 (the day he was first transferred to the detention centre in Volokolamsk) the applicant had received a mattress, a pillow, a blanket, a pillowcase, two bed sheets, a bowl, a spoon and a mug. On 10 November 2003, when the applicant was transferred to the detention centre in Volokolamsk again, he had received the same objects. He had returned them to the administration on 14 November 2003.
45. The applicant produced medical certificate no. 1259, issued on 2 June 2000 by the Central Military Medical Commission. According to this document, the applicant had suffered from bronchial asthma of medium severity and had normal visual acuity. According to the applicant, upon his arrival at the detention centre in Volokolamsk he had been questioned by a doctor about his medical history. The applicant had complained of asthma attacks and the impairment of his eyesight; in reply the doctor had said that he had no appropriate medication for treating asthma and that the applicant's relatives should procure it themselves. He stated that the only examination he had undergone was a fluorography, and in those circumstances it was little wonder that the doctor had detected no signs of bronchial asthma.
46. In the following days the applicant repeated his request to be examined by an ophthalmologist, but received no reply. The applicant broke his tooth, because in the detention centre he was given only stale rye bread; he sought to see a dentist but to no avail. Moreover, the administration refused to allow the applicant to be examined by a doctor invited by the NGO “For Human Rights”.
47. As regards conditions in cell no. 101, where he had been detained, the applicant challenged the account given by the Government. In his submissions, the cell measured about 16 to 18 square metres and contained up to 25 people, and never fewer than 22. The applicant named his cellmates who could confirm this fact. The cell had no shelves: instead, four sleeping berths were used for storage of food and personal belongings of the detainees, their clothes, shoes and so on. Hot water was available only occasionally, and for very short periods of time, so the detainees had time only to wash crockery, underwear and bedclothes. There was no place to dry the linen, so the applicant had to sleep on wet bed sheets. The “lavatory” mentioned by the Government was in fact a hole in the floor of the cell, which was not separated from the living space, so the odour of faeces was very disturbing. After having used the toilet the inmates had to burn a piece of paper so the smoke attenuated the putrescent scent of faeces, but, at the same time, this caused the applicant severe headaches. The distance between the table at which the detainees ate and the “lavatory” was no more than 1.5 metres, and the washbasin was located just above it. The applicant admitted that on 20 October 2003 the cell had been disinfected; however, on 4 November 2003, when he had been placed there, it had been full of lice and fleas again. Apparently the parasites in the mattresses and bedclothes had escaped disinfection. During his detention in Volokolamsk, the cell had not been cleaned a single time.
48. Upon his arrival at the detention centre in Volokolamsk, the applicant had received a mattress and a bed sheet. In his submission, the mattresses given to the newly arrived inmates were not cleaned, even if their previous owners had suffered from tuberculosis or other contagious diseases. The applicant was not provided with a bowl, a mug or a spoon; the administration had promised him to give the crockery as soon as it was available. He insisted that his signatures in the register produced by the Government were forged and that he had never received any crockery from the administration. Moreover, the register contained no information about the third period of the applicant's detention in Volokolamsk, namely between 21 November and 1 December 2003, so there was no proof that the applicant had been provided with any living essentials at all during this period.
49. As regards the conditions and timing of his transfer to that detention centre, the applicant insisted that its administration had distorted the facts. Thus, according to the prison administration, on 10 October 2003 he had arrived at the detention centre in Volokolamsk at about 2 p.m. In fact he had arrived there at about 9 a.m. and spent 8 hours in a humid room made of concrete, without food or light. The same had occurred on 21 November 2003.
50. The applicant produced written statements by a number of his cellmates concerning the conditions of detention at the detention centre in Volokolamsk in 2003 and 2004. Thus, Mr Potapov was detained in cell no. 101 in November 2003. Mr Potapov confirmed that the cell had been heavily overcrowded: sometimes up to 25 inmates were detained there. The cell-mates had to take turns to sleep and there was not even enough space to for all of them to sit down. Furthermore, the cell had been full of insects (ticks, lice and cockroaches). Medical aid had been denied to the detainees.
51. The Government disputed those allegations. According to the Government, cell no. 101 complied with sanitary, epidemiological and hygiene standards. Each detainee had an individual sleeping berth, the plumbing and water supply systems were operational, and no vermin had been detected. The Government produced a written statement by Mr Potapov of 23 December 2003, addressed to the chief officer of the detention centre. In that statement Mr Potapov asserted that “[the applicant] had his individual sleeping berth, ... he often complained about the regime of detention, reacted extremely negatively to the requirements of the administration [of the detention centre], and always had conflicts with the officers of the special department”.
52. Pursuant to Article 222 of the Criminal Code, the unlawful acquisition, transfer, sale, storage, transportation or carrying of firearms, basic parts of firearms, ammunition, explosives, or explosive devices is punishable by restraint of liberty for a term of two to four years, or by arrest for a term of up to six months, or by deprivation of liberty for a term of up to three years, with a fine amounting to 200 to 500 times the minimum wage, or amounting to the wages, salary or any other income of the convicted person for a period of two to five months, or without any fine (paragraph 1). The same acts committed by a group of persons in a preliminary conspiracy, or repeatedly, are punishable by deprivation of liberty for a term of two to six years (paragraph 2).
53. Under Article 91 (“Grounds for arresting a suspect”) of the Criminal Procedure Code (“the Code”), the police may arrest a person suspected of having committed an offence punishable by imprisonment if the person is caught in the act or immediately after committing the offence. No judicial authorisation of the arrest is required.
54. Pursuant to Article 94 (“Grounds for releasing a suspect”), within forty-eight hours from the time of the arrest, a suspect must be released if a measure of restraint in the form of custody has not been imposed on the person or a final decision has not been deferred by a court under Article 108 (paragraph 6, subparagraph 3) of the Code. When imposition of custody as a measure of restraint is deemed to be necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator or inquiry officer with the consent of a prosecutor.
55. Pursuant to Article 108 (“Taking into custody”), taking into custody as a measure of restraint is to imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding two years, if it is impossible to use a different, milder measure of restraint.
56. If a judge's ruling to take the suspect into custody as a measure of restraint or to extend the custody period does not arrive within forty-eight hours from the moment of the arrest, the suspect must be released immediately, and the head of the custody facility in which the suspect is held must notify the inquiry agency or the investigator in charge of the proceedings in the criminal case and the prosecutor about such release. If a court finding or ruling exists that denies an investigator's application to order a measure of restraint in the form of custody for a suspect, a copy of that ruling must be provided to the suspect when he is released.
57. By Article 97 (“Grounds for imposing a measure of restraint”), a court is empowered to impose a measure of restraint (that is, custody) on a suspect, provided that there are sufficient reasons to believe that the suspect (1) might abscond during the inquiry, pre-trial investigation or trial; (2) might continue to engage in criminal activities; or (3) might threaten a witness or other participants in the criminal proceedings, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case.
58. Under Article 98 (“Circumstances to be considered in imposing a measure of restraint”), the circumstances to be taken into account when imposing a measure of restraint include, apart from those specified in Article 97 of the Code, the seriousness of the charges brought and the defendant's personality, age, health, family status, occupation and other circumstances. The judge's ruling is to be forwarded to the person who has lodged the application, the prosecutor, and the defendant (suspect), to be executed immediately. Under Article 108, a second application for a person to be taken into custody in the same criminal case after one such application has been denied by a judge's ruling may be lodged with the court only if new circumstances emerge that justify the need to take the person into custody. A judge's ruling to take or not to take a person into custody may be appealed against to a higher court within three days from the date on which the ruling was given. A judge of the appellate court (кассационная инстанция) must give a decision on such complaint or representation within three days from the date of receiving it.
59. Pursuant to Article 447 of the Criminal Procedure Code, a special procedure is to be applied in criminal cases with respect to lawyers (адвокат). By Article 448 (“Initiation of criminal proceedings”), a prosecutor takes the decision to initiate criminal proceedings against a lawyer. Such a decision is subject to approval by a judge. Article 449 prohibits the arrest of MPs, judges, prosecutors and certain other categories of State officials, unless they have been caught at the scene of the crime. However, lawyers are not immune from “arrest”.
60. Under Article 450 § 5 (“Special features of imposing measures of restraint and conduct of individual investigative measures”), if there was no court decision authorising the criminal prosecution of a lawyer, the court should give its authorisation for investigative measures to be taken in respect of the lawyer.
61. The Civil Code of the Russian Federation provides as follows:
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies...”
“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when:
... the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand...”
62. The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain etc.). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by the unlawful acts of law-enforcement agencies. For example, point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given...”. These words, as well as the subsequent judicial practice, suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” as such. Therefore, if there was an acquittal, detention on remand would be “unlawful” even if all the substantive and procedural rules were complied with when it had been imposed.
VIOLATED_ARTICLES: 3


ITEMID: 001-109290
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: J.A.T. AND J.B.T. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, J.A.T. and J.B.T., are British nationals who were born in 2007 and 1975 respectively. The first applicant lives in South Africa and the second applicant, who is the father of the first applicant, lives in Kent. They are represented before the Court by Ms N. Mole of the Aire Centre, a non-governmental organisation based in London.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The second applicant married a South African national (“the mother”) in February 2001. In 2007 the first applicant (their only child) was born. The second applicant separated from the mother in July 2009 and their divorce was finalised in September 2010.
4. Following the separation, the second applicant and the mother established a fully-shared care arrangement. The first applicant spent equal amounts of time (three and a half days per week) with each parent and major events were celebrated jointly.
5. On 15 December 2009 the mother applied to a District Court for permission to relocate to South Africa with the first applicant. The second applicant opposed the application.
6. On 25 March 2010 the District Court asked the Children and Family Court Advisory and Support Service (“CAFCASS”) to prepare a report on the question of relocation. The CAFCASS officer filed her report on 10 October 2010.
7. The report indicated that the motivation for the mother’s return to South Africa was disputed. The second applicant believed that the principal motivation for the mother’s return to South Africa was her desire to pursue a new relationship. He was concerned about the emotional harm that separation would cause to the first applicant. He also expressed concerns that the mother’s plans appeared to be somewhat vague. The mother accepted that she had a new boyfriend (“X”) in South Africa with whom she hoped to develop a relationship on her return. However, she claimed that she had no support network in the United Kingdom and no employment prospects. As a consequence, she was unable to fund an acceptable lifestyle for herself and the first applicant. She believed that in South Africa she would have the support of her family and friends, who could also assist her in finding work.
8. The CAFCASS officer noted that the first applicant would likely experience feelings of loss and bereavement were he to relocate to South Africa and she suspected that he would regress severely, with the added danger of behavioural problems at home and at school. However, she believed that the good foundation he had gained from his parents should offer a reasonably good prognosis for recovery and the ability to adapt. She concluded:
“Mrs [T] has set out her plans for herself and [J] in South Africa. These are attuned to [J’s] needs and appear reasonable. In my opinion, there are areas of uncertainty, i.e. settled living arrangements, her ability to earn and provide an appropriate lifestyle, especially within a privatised system, and child care arrangements (apart from nursery). Mr [T] asserts that Mrs [T] is deeply committed to her relationship with [X] that her need to be with him will override her consideration of [J’s] needs. If this is true, this raises considerable concern. Mr [T] does not accept that Mrs [T] is unable to fund herself or obtain a good home should she remain in the U.K. He regards her as a resourceful and talented individual. He states that she has the ability to have frequent access to her friends and family in South Africa.
Recommendation
In my opinion, [J] should not be removed from the jurisdiction unless there is a cogent reason for such a removal. The viability of such a move will have to be established by the Court.”
9. The relevant legal test with regard to international relocation was set out in Payne v. Payne [2001] 1 F.L.R. 1052, in which the Court of Appeal noted that such cases had consistently been decided upon the application of two propositions: that the welfare of the child was of paramount consideration and that refusing the primary carer’s reasonable proposals for relocation was likely to impact detrimentally on the welfare of her dependent children. Prior to reaching a conclusion, the court had to ask whether the mother’s application was genuine and realistic. If it was, the court had to ask whether the father’s proposal was motivated by a genuine concern for the child’s well-being or by some ulterior motive. Finally, the court had to consider the impact on the mother of refusal before conducting an overriding review of the child’s welfare. The test in Payne has been widely applied since the date of the judgment. However, in the case of Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 a High Court Judge held that a case in which there was an equal shared care arrangement fell outside the ambit of Payne. He decided the case solely on the welfare checklist contained in section 1(3) of the 1989 Act and this decision was affirmed by the Court of Appeal in MK v. CK [2011] EWCA Civ 793.
10. On 5 November 2010 a District Judge granted the mother permission to relocate with the first applicant to South Africa. The judge noted that in the present case there was no clear-cut primary carer. However, she observed that both parents had new partners and that the relationship between them had been becoming more strained. She further observed that while each parent had equal custody, the second applicant had largely left it to the mother to make important decisions, for example concerning the choice of nursery school for the first applicant. Consequently, the judge found it probable that the terms of the shared care arrangement would change in future even if the first applicant and the mother were to remain in the United Kingdom. The judge therefore distinguished the case of Re Y and gave weight to the factors in Payne.
11. With regard to the questions posed in Payne, the judge considered that both parents were motivated by genuine rather than improper concerns. Although the judge noted that the mother’s plans were “fluid” and that there was an absence of any definite plans, she considered her application to have been researched and investigated. The judge accepted that relocation would have a huge impact on the second applicant, but stated that it was clear that the mother would be devastated if her application were to be refused, and that her distress would impact negatively on the first applicant. The judge also accepted that her distress would make it hard for her to obtain employment and improve her life.
12. Finally, the judge considered the first applicant’s welfare as directed by the welfare checklist. Although she noted that the case was very finely balanced, she concluded that the balance of the first applicant’s interests lay with relocation. In reaching this conclusion, she noted that she had considered the Article 8 interference with the second applicant’s rights but considered it justified and proportionate.
13. With regard to contact, the judge ordered that the first applicant was to be brought to the United Kingdom at least twice per year and the mother was to make the first applicant available for contact up to a maximum of ten periods per year in South Africa. Contact was to include one month’s staying contact in the summer and up to half nursery or school holidays either in South Africa or elsewhere.
14. Counsel for the second applicant advised him that any appeal against this decision would have slim prospects of success. Nevertheless, the second applicant appealed to the Family Division of the High Court. The High Court could only overturn the findings of the District Judge if it considered them to be “plainly wrong” or if the judge had approached the matter in a plainly incorrect way. As the High Court did not consider the findings of the District Judge to fall into either of these categories, it dismissed the second applicant’s appeal in a decision dated 21 January 2011.
15. The mother and the first applicant moved to South Africa in March 2011. The second applicant submits that they currently live in a one-room bedsit with no internet connection. As a consequence, the second applicant can only communicate with the first applicant through SKYPE when he visits his grandparents. The first applicant is attending a day care centre five days a week and the mother remains unemployed.
16. In July 2011 the mother brought the first applicant to the United Kingdom, where he spent one month with the second applicant.
17. The principle statutory provision in cases concerning the care of children is the Children’s Act 1989 (“the 1989 Act”). Section 1 of the 1989 Act sets out the welfare checklist. The welfare checklist provides that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be its paramount consideration. In particular, the court shall have regard to the following factors:
“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.”
18. Section 13 of the 1989 Act concerns the removal of a child from the jurisdiction. It provides that where a residence order is in force with respect to a child, no person may remove him from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the Court.
19. With regard to the question of relocation, the foundation of the current case-law is the case of Poel v. Poel [1970] 1 WLR 1469. In that case Lord Justice Sachs stated that:
“When a marriage breaks up, then a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may, as Winn LJ has pointed out, produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results.”
20. Following the adoption of the 1989 Act the approach in Poel was reiterated in Payne v. Payne [2001] 1 F.L.R. 1052. Lord Justice Thorpe stated that:
“In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.”
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However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent’s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by a genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationship with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.”
21. Later on in the judgment the President summed up the position as follows:
“In summary I would suggest that the following considerations should be in the forefront of the mind of a judge trying one of these difficult cases. They are not and could not be exclusive of the other important matters which arise in the individual case to be decided. All the relevant factors need to be considered, including the points I make below, so far as they are relevant, and weighed in the balance. The points I make are obvious but in view of the arguments presented to us in this case, it may be worthwhile to repeat them.
(a) The welfare of the child is always paramount.
(b) There is no presumption created by section 133(1)(b) of the Children Act 1989 in favour of the applicant parent.
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
(e) The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be significant.”
22. The test in Payne has been widely applied since the date of the judgment. However, in the case of Re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 a High Court Judge held that the facts of a case in which there was an equal shared care arrangement fell outside the ambit of well-settled authorities. He therefore decided the case solely on the welfare checklist contained in section 1(3) of the 1989 Act. This decision was affirmed by the Court of Appeal in MK v. CK [2011] EWCA Civ 793, in which Lord Justice Thorpe categorically stated that Payne was based on the premise that the applicant was the primary carer and that it in no way set out the approach the court should take where there was no primary carer. In such cases the court stated that the judge should exercise his discretion to grant or refuse by applying the welfare checklist contained in section 1(3) of the 1989 Act. Nevertheless, Lord Justice Thorpe considered the test in Payne to be of continuing relevance in relocation cases. However, Lady Justice Black and Lord Justice Moore-Bick appeared to suggest that the test in Payne was “guidance” rather than principles of law from which no departure was permitted. They further suggested that the welfare of the child should overbear all other considerations, however powerful or reasonable they might be.
23. The United Nations Convention on the Rights of the Child provides as follows:
1. 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. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
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2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.
24. On 23-25 March 2010, more than fifty judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross-border family relocation. The principles agreed on are known as the Washington Declaration on International Family Relocation. The Washington Declaration provides that:
3. In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.
4. In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case:
i) the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest;
ii) the views of the child having regard to the child’s age and maturity;
iii) the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;
iv) where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;
v) any history of family violence or abuse, whether physical or psychological;
vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;
vii) pre-existing custody and access determinations;
viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;
ix) the nature of the inter-parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;
x) whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;
xi) the enforceability of contact provisions ordered as a condition of relocation in the State of destination;
xii) issues of mobility for family members; and
xiii) any other circumstances deemed to be relevant by the judge.”