ITEMID: 001-87624
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MUITY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1966 and lives in Baja.
5. On 27 January 1997 the applicant’s wife filed for divorce.
6. After several hearings, on 5 October 1999 the Pest Central District Court pronounced the parties’ divorce, placed the couple’s daughter with the mother, ordered the applicant to pay maintenance and suspended his right of access to his child, as he suffered from paranoid psychosis and, in the court’s view, his conduct was unpredictable.
7. On 25 May 2000 the Budapest Regional Court upheld part of this decision but remitted certain questions, in particular those concerning maintenance and the applicant’s visiting rights, to the District Court.
8. The first-instance proceedings were resumed on 23 April 2001. The applicant was subjected to an examination by an expert psychiatrist, in whose opinion his access to the child was feasible only under supervision, given his mental state.
9. On 17 October 2001 the court held a hearing and issued an order concerning the applicant’s access rights. This decision was quashed on appeal on 16 May 2002.
10. After several hearings, on 27 June 2003 the District Court issued an order allowing the applicant to meet his daughter once a month for two hours on the premises of a specialised foundation. Relying on the opinion of the expert psychiatrist, it observed that the applicant’s ailment prevented him from having greater access to his daughter, then eight years old. On 4 December 2003 the Budapest Regional Court upheld this decision.
11. On 25 February 2004 the Pest Central District Court determined the remainder of the action concerning maintenance. In application of section 92(1) of the Family Code, the court also recapitulated the applicant’s access rights, in that he was entitled to meet his daughter every fourth Tuesday, on the premises of the foundation, supervised by a professional.
12. During these proceedings, the applicant modified his claims on many occasions and filed numerous submissions.
13. On 9 December 2004 the Regional Court dismissed the applicant’s appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-98928
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SANDEL v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1941.
5. On 9 April 1998 the applicant was arrested on suspicion of fraud. On 10 April 1998 he was brought before an investigating judge of the Skopje Court of First Instance (“the trial court”). The minutes of the hearing held on that date recorded that he had an insufficient command of Macedonian, but that he would agree, if need be, to have some phrases re-read or explained in detail. However, in the absence of his lawyer he remained silent. The investigation started and the applicant was remanded in custody. On 16 April 1998 he was again brought before the investigating judge and this time, in the presence of his lawyer, he produced evidence in Serbian stating that he had a limited command of Macedonian. He gave his testimony in the presence of Ms O.T., a court-certified interpreter. He signed the minutes without making any comment or objection.
6. On 29 April 1998 the public prosecutor lodged a bill of indictment. On 8 May 1998 the applicant objected on the ground that the bill was defective because it was not supported by sufficient evidence. On 15 May 1998 the trial court dismissed the applicant's objection.
7. On 23 June 1998 the applicant appointed another lawyer to represent him in the proceedings.
8. Four hearings fixed between July and September 1998 were adjourned owing to the applicant's request to use Hebrew, his mother tongue.
9. On 6 August 1998 he was released on bail.
10. On an unspecified date between September and December 1998, the trial court, at the applicant's suggestion, appointed Mr E.F., a Hebrew-speaking employee in a Skopje-based non-governmental organisation, as interpreter.
11. A hearing fixed for 15 January 1999 was rescheduled owing to the absence of Mr E.F.
12. On 29 April 1998 an investigation started in respect of the applicant into two other counts of fraud. On 1 June 1998 the public prosecutor lodged an indictment against the applicant. On 11 June 1998 the applicant objected on the ground of lack of evidence to support the charges against him. He also requested that the bill of indictment be translated into Hebrew. On 20 October 1998, in the presence of the applicant and his second lawyer, the trial court dismissed the applicant's objection.
13. On 10 March 1999 the trial court joined the two sets of proceedings.
14. Between 15 January 1999 and 12 September 2001, the trial court fixed nineteen hearings of which three were adjourned at the applicant's request, five owing to the absence of either an expert, who was called upon to provide an opinion of the applicant's signature, the public prosecutor or Mr E.F. and two owing to the absence of the trial judge and a strike by the court administration. During this time, the proceedings were conducted with the assistance of Mr E.F. In his presence, the court heard the applicant, the expert and several witnesses, two of which were foreign nationals, and obtained an expert report on the applicant's signature. At hearings on 10 March and 12 October 1999, and 12 September 2001, the applicant confirmed his testimony given in the pre-trial proceedings and stated that he had understood the bills of indictment communicated to him.
15. On 30 September 2001 Mr E.F. left the State and informed the trial court that he could no longer provide interpretation. By 3 March 2004, fifteen hearings were postponed because the trial court could not secure the attendance of Mr E.F. or another interpreter into Hebrew. At a hearing of 21 June 2002, the applicant insisted on having interpretation into Hebrew and refused the court's offer of English or Serbian interpretation. The Ministry of Justice stated that there was no court-certified interpreter into Hebrew registered in the respondent State who, under the rules of court, would be authorised to assist in court. The Jewish Association also replied that none of its members had sufficient command of Hebrew.
16. According to the minutes of the hearing held on 19 March 2003, the applicant stated that he had been living in the respondent State for ten years and had used English and Serbian for everyday communication. However, since his command of these languages was limited, he had insisted on having interpretation into Hebrew.
17. On 21 April 2003 a Skopje-based foreign language school issued a certificate attesting to the applicant's level of Macedonian. According to the latter, the applicant had limited understanding of Macedonian; he replied in Serbian; he could partly understand a written text if it was in Latin script but he could write only in Serbian. The applicant stated that he had submitted this certificate to the court as evidence.
18. At a hearing of 29 September 2003, the applicant stated that he used Macedonian, Serbian, Bulgarian and English for everyday communication. He signed contracts in Macedonian or English. In case something had to be added, he would ask his sons in Israel, in Hebrew, to translate the relevant part into English.
19. At a hearing of 17 November 2003, the applicant, when asked by the court, stated that he “used Macedonian, Serbian and English for everyday communication, but ... could not write or read in these languages or use them in the proceedings”. The applicant further stated that in the pre-trial proceedings, meaning the questioning of April 1998, he had made his statement in Serbian – despite having limited command of it – on the instructions of his lawyer, who, he alleged, had been working in concert with the police and who had set him up to sign the minutes.
20. In view of the applicant's statements, on 28 January 2004 the trial court appointed two interpreters into English, Serbian and Bulgarian, one of whom was Ms O.T.
21. From 3 March 2004 the proceedings were conducted with the assistance of these two interpreters. Three adjournments were ordered owing to the applicant's absence.
22. On 10 November 2004 the trial court ordered, at the applicant's request, that the bills of indictment of 29 April and 1 June 1998, be translated into English and Serbian. On 29 December 2004 the applicant returned the translated versions saying that he was proficient only in Hebrew.
23. From 15 January 2005, a third lawyer represented the applicant in the proceedings. At a hearing of 17 January 2005, the trial court refused his request for all documents in the case file to be translated into Hebrew since they had already been orally translated by Mr E.F., in whose presence the court had admitted other evidence.
24. At hearings held on 4 and 15 April 2005 and after the applicant's lawyer had given extensive concluding remarks, the trial court convicted the applicant and sentenced him to two years and six months' imprisonment. It also ordered a security measure – expulsion from the respondent State for four years.
25. On 29 September 2005 the applicant lodged an appeal written in Hebrew. At the trial court's request, he submitted a certified copy in Macedonian. He complained that, inter alia, he had not been given the right to use Hebrew even though the trial court had accepted that he had a limited command of Serbian and English. He argued that his initial statement in Serbian had been made under duress. He further complained that evidence against him had been admitted in the form of photocopies.
26. At a public hearing held on 18 April 2006, the Skopje Court of Appeal dismissed the applicant's appeal. It rejected his arguments concerning the use of Hebrew, relying on his initial statement of 16 April 1998 made in Serbian and the fact that all the admitted evidence had been translated into Hebrew with the assistance of Mr E.F. It also stated that his appeal had been translated into Macedonian by an interpreter certified by the court to translate into Turkish, which suggested that the applicant's insistence on the use of Hebrew had been aimed at prolonging the proceedings. It further rejected his complaints about the use of evidence in the form of photocopies, stating that it had not been possible to admit it in original form as it had meanwhile been destroyed.
27. On 14 June 2006 the applicant submitted an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда) to the Supreme Court in which he reiterated his complaints that he had been denied the right to use Hebrew, the only language of which he had sufficient command. He complained that the trial court, after being unable to secure the presence of a suitable interpreter, imposed the use of Serbian and other languages, even though it had established earlier in the proceedings that he could not use them proficiently. In this connection he complained about the rejection of his request to have an interpreter from abroad, even though Mr E.F. was an American Jew. He further complained that he had not been informed, in a language which he understood, of the nature and cause of the accusation. Lastly, he complained about the use of evidence in the form of photocopies.
28. On 16 January 2007 the Supreme Court dismissed the applicant's appeal on points of law. It held that the proceedings had been conducted in a language which the applicant understood, relying on the depositions taken on 16 April 1998 in the pre-trial proceedings and the fact that all the evidence had been translated into Hebrew by Mr E.F. It also held that the applicant had had, throughout the entire proceedings, defence counsel of his own choosing. It further dismissed the remaining complaints finding no grounds for departing from the reasoning given by the lower courts. No information was provided as to the date of service of this decision.
29. On 27 June 2008 the President of the State granted the applicant early release from prison.
30. During the proceedings, the applicant requested, on several occasions, that the trial court and the State Judicial Council speed up the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96035
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WIECZOREK v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 37-1 - Striking out applications);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1952 and lives in Cracow.
6. In a letter of 18 September 2000 to the Social Insurance Authority (Zaklad Ubezpieczeń Spolecznych) in Cracow, the applicant's husband submitted that in his view the applicant, who had been receiving a disability pension since 1985, was in fact healthy and should no longer be receiving a pension. He suggested that she be re-examined by competent doctors. Apparently divorce proceedings involving the parties were pending at that time.
7. On 10 October 2000 the Social Insurance Authority, referring to the applicant's medical records, instituted proceedings in order to reassess the applicant's condition with a view to establishing whether she complied with the conditions governing entitlement to a disability pension.
8. In reply to a query from the applicant about the legal basis on which these proceedings were instituted, on 28 November 2000 the Social Insurance Authority informed her that the proceedings had been instituted under the provisions governing the internal supervision of physicians working for the Authority.
9. Eventually, on 4 December 2000 the Social Insurance Authority gave a decision by which the applicant's right to receive a disability pension was extinguished as she was no longer unfit to work.
10. On 12 January 2001 the applicant appealed, submitting that the Social Insurance Authority had failed to assess properly the medical evidence concerning her condition. She also submitted that her condition had been reassessed in 1994, 1995 and 1997. On each of these occasions decisions had been given confirming that she was permanently unfit to work.
11. In her pleadings submitted on 18 May and 3 December 2001 the applicant submitted that there was no legal basis for conducting medical examinations in order to reassess her condition. She referred to the 1983 Ordinance, which prohibited reassessment of the medical condition of persons who had been receiving a disability pension for longer than ten years (see paragraph 25 below). The Ordinance provided that no medical examination could be conducted in respect of such persons with a view to a reassessment of their condition. She further invoked the case-law of the Supreme Court which, in the applicant's submission, supported the conclusion that no medical reassessment of a condition which had served as the basis for granting a disability pension could be ordered once ten years had elapsed from the date on which the decision awarding the entitlement to a pension became final (II URN 8/94, see paragraph 28 below).
12. The Cracow Regional Court, by a judgment of 24 September 2002, partly amended the decision of the Social Insurance Authority by granting the applicant the disability pension for a fixed period, namely from 1 January 2001 until 1 January 2003.
13. The applicant appealed, claiming that in view of her condition she was entitled to a permanent disability pension. She complained about the assessment of the medical evidence by the first-instance court. In her additional pleadings submitted to the Court of Appeal on 6 September 2004, she reiterated her arguments about the lack of legal basis for the reassessment of her condition and concluded that the first-instance judgment was therefore in breach of substantive law.
14. On 8 September 2004 the Cracow Court of Appeal dismissed the appeal. The court examined the complaint concerning the allegedly incorrect assessment of the evidence and concluded that the first-instance court had been thorough in the assessment it had carried out. It also noted that during the appellate proceedings and in view of doubts the appellate court had harboured as to the applicant's condition, it had ordered that, in addition to the evidence available in the applicant's medical records, a medical opinion should be obtained from the local centre for occupational medicine and further examinations should be carried out by specialists in cardiology, nephrology, endocrinology and gynaecology. The applicant had refused to undergo these examinations.
15. The court further observed that the first-instance judgment had maintained the applicant's pension for the period from 1 January 2001 until 1 January 2003. When that period expired, the applicant had failed to submit to the Social Insurance Authority a request to have her entitlement to the pension prolonged.
16. In response to the applicant's argument based on the 1983 Ordinance and the prohibition it imposed on the medical re-examination of persons in receipt of a disability pension for longer than ten years, the court observed:
“It should be borne in mind that the proceedings concerning the applicant's case had been instituted [by the Social Insurance Authority] under the legal provisions governing the internal supervision by the principal physician of doctors working for that Authority and assessing the medical condition of persons seeking a disability pension (see Article 11 of the 1997 Ordinance of the Minister of Labour and Social Policy). Accordingly, it was of no legal relevance to the applicant's case that she had been declared permanently unfit to work in 1985. Neither was the length of time for which she had been receiving her pension of any significance for the present case.”
17. On 13 October 2004 the Cracow Court of Appeal refused to grant the applicant legal aid to lodge a cassation appeal. The written grounds for the refusal read as follows:
“Under Article 117 § 1 of the Code of Civil Procedure a party to proceedings who has been exempted, fully or in part, from the obligation to pay court fees can request that a legal-aid lawyer be assigned to represent him or her in the case. The court shall allow such a request if it decides that the participation of a lawyer in the case is necessary. A legal-aid lawyer shall be so assigned where the party is unable to argue the case competently or the case is complex as to the facts or law.
The crucial issue in the present case was the assessment of the [applicant's] condition and, consequently, it cannot be regarded as so complex as to warrant legal assistance. The court therefore considers that legal assistance would be unnecessary and, accordingly, dismisses the applicant's request.
The mere fact that a party cannot afford to pay legal fees does not justify the granting of legal assistance; this also applies to cases where legal representation is mandatory for the preparation of the cassation appeal.”
18. At the material time Article 113 § 1 of the Code of Civil Procedure provided that parties to proceedings could ask the court competent to deal with the case to grant them an exemption from court fees provided that they submitted a declaration to the effect that the fees required would entail a substantial reduction in their standard of living and that of their family.
19. Parties to proceedings concerning social insurance allowances and pensions were exempted, under Article 463 § 1 of the Code of Civil Procedure, from the obligation to pay court fees.
20. Under Article 117 of the Code, persons exempted from court fees could request that legal aid be granted to them. This provision, in so far as relevant, provided:
“1. A party [to the proceedings] exempted partly or entirely from court fees may request that an advocate or a legal adviser be appointed for him or her. ... The court shall grant that request if it considers that the participation of an advocate or a legal adviser in the case is necessary. ...
2. The provisions of the preceding paragraph are also applicable to parties who benefit from a statutory exemption from court fees, provided that they demonstrate, by way of the declaration referred to in Article 113 § 1, that the fees of the advocate or legal adviser would entail a reduction in their standard of living and that of their family. The court shall refuse to assign a lawyer to the case if it considers that the party's action or appeal is manifestly ill-founded.”
21. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court terminating the proceedings. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser were to be dismissed.
22. Article 393 1 of the Code listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
(1) a breach of substantive law on account of its erroneous interpretation or wrongful application;
(2) a breach of procedural provisions if the defect in question could significantly affect the outcome of the case.”
23. Article 394 of the Code of Civil Procedure guarantees the parties to proceedings the right to appeal against a decision of the first-instance court terminating the proceedings. An interlocutory appeal (zażalenie) of this kind is also available against certain interlocutory decisions specified in this provision. An appeal lies against a refusal of exemption from court fees and likewise against a refusal of legal aid, where such decisions have been given by a first-instance court.
24. No appeal lies where such decisions are given by an appellate court.
25. Section 29(1)(a) of the 1983 Ordinance of the Minister of Labour and Social Policy of 5 August 1983 (Journal of Laws No. 47, item 214), as amended in 1990, provided that no medical examination could be organised with a view to reassessing the medical condition of persons who had been declared unfit to work and who had been in receipt of a disability pension for longer than ten years.
This Ordinance was repealed with effect from 1 September 1997.
26. Since 1 January 1999 the system of social insurance has been regulated by the Social Insurance System Act of 13 October 1998 (Ustawa o systemie ubezpieczeń społecznych) and a number of other acts applying to specific occupational groups or types of benefits. Social insurance benefits are essentially paid from a single fund financed by various compulsory contributions from employees and employers and managed by the Social Insurance Authority. Entitlement to a disability pension is based on the claimant's inability to continue paid employment on grounds of illhealth, confirmed by a medical certificate by doctors working for the Authority.
27. In a number of judgments the Courts of Appeal and the Supreme Court examined whether entitlement to a disability pension which had been paid to the insured person for longer than ten years could be redetermined following a fresh medical examination and reassessment of the person's condition.
28. In its judgment of 7 April 1994 the Supreme Court (II URN 8/94) quashed a judgment of the Cracow Court of Appeal in which the latter had accepted that a fresh medical examination could be ordered in respect of the appellant, who had been in receipt of a disability pension for nineteen years. The Supreme Court found that, despite the fact that it was contained in the Ordinance, the prohibition should be regarded as being of a statutory nature. In a judgment of 21 September 1995 (II URN 28/95) the Supreme Court reached the same conclusion and quashed a judgment of the appellate court. It observed that the decision that the appellant should undergo a medical examination to reassess his condition lacked any legal basis and that, accordingly, the result was of no legal relevance to the appellant's entitlement to a disability pension. In both judgments the Supreme Court referred to its judgment of 23 November 1987 (II URN 259/87). In a judgment of 17 July 1996 (II URN 13/96) the Supreme Court allowed an extraordinary appeal brought by the Ombudsman in the case of an appellant who had been in receipt of a disability pension for nineteen years. It reiterated the conclusions previously reached by the Supreme Court and held that the medical reassessment of a person's condition after that time had no legal basis as it was contrary to section 27 of the Ordinance 1983. It would have been possible only if, prior to issuing such an order, the Social Insurance Authority had obtained evidence showing that the person's condition no longer made him or her unfit to work. In the absence of such evidence, medical reassessment breached the principle of vested rights. On 26 May 1999 (II URN 13/96) the Supreme Court reiterated its previous conclusions as to the prohibition of medical reassessment after longer than ten years. In its judgment of 27 January 2000 the Gdańsk Court of Appeal shared the view of the Supreme Court and held that in such cases the disability should be presumed to be permanent.
In its judgment of 22 January 2002 ( II UKN 747/00) the Supreme Court held:
“The Social Insurance Authority cannot challenge the assessment that a person entitled to a disability pension is unfit to work if that person has been recognised as disabled for a period of over ten years. The change of legal situation in 1997 [when the 1983 Ordinance was repealed] is irrelevant in this respect.”
29. In a judgment of 5 September 2000 (II UKN 696/99) the Supreme Court held that the legal changes made to the social insurance system in 1998 did not affect existing disability entitlements in so far as the applicable provisions guaranteed the permanence of entitlements which had been paid for a period exceeding ten years.
30. In its judgments of 5 and 11 May 2005 (III UK 9/05 and II UK 29/05 respectively) the Supreme Court noted that the Ordinance had been repealed with effect from 1 September 1997. It further referred to the views expressed by the Supreme Court in the judgments referred to above and disagreed with them. It was of the opinion that section 29 of the 1983 Ordinance did not create a presumption of permanent entitlement to a disability pension which had been paid for longer than ten years. It observed that the temporal scope of the application of that Ordinance and the principle stated in section 29 thereof were unclear; in particular, it was not clear whether after the entry into force of the 1998 Act the prohibition on medical re-assessment remained valid. The court took the view that this was not the case and that the right to social insurance entitlements, including disability pensions, could not be seen as being irrevocable under all circumstances.
31. On 26 January 2005 (III UZP 2/05) the Supreme Court examined a request brought by the Ombudsman for a resolution by seven judges as to whether the Social Insurance Authority could challenge the entitlement to a disability pension of persons who prior to 1 September 1997, the date on which the 1983 Ordinance was repealed, had been receiving the pension for longer than ten years. The Ombudsman pointed to discrepancies in the case-law of the various appellate courts and in the Supreme Court's case-law. In its resolution the Court retraced the history of the relevant case-law and acknowledged that diverging views had been expressed by different benches of that court. It ultimately expressed the view that the prohibition on medical reassessment contained in the 1983 Ordinance was merely of a procedural nature and as such could not be applied after the Ordinance had been repealed. In consequence, nothing prevented the Social Insurance Authority from ordering a fresh medical examination with a view to reassessing whether the person concerned continued to be unfit for work.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-57496
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1975
DOCNAME: CASE OF GOLDER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient
TEXT: 9. The facts of the case may be summarised as follows.
10. In 1965, Mr. Sidney Elmer Golder, a United Kingdom citizen born in 1923, was convicted in the United Kingdom of robbery with violence and was sentenced to fifteen years’ imprisonment. In 1969, Golder was serving his sentence in Parkhurst Prison on the Isle of Wight.
11. On the evening of 24 October 1969, a serious disturbance occurred in a recreation area of the prison where Golder happened to be.
On 25 October, a prison officer, Mr. Laird, who had taken part and been injured in quelling the disturbance, made a statement identifying his assailants, in the course of which he declared: "Frazer was screaming ... and Frape, Noonan and another prisoner whom I know by sight, I think his name is Golder ... were swinging vicious blows at me."
12. On 26 October Golder, together with other prisoners suspected of having participated in the disturbance, was segregated from the main body of prisoners. On 28 and 30 October, Golder was interviewed by police officers. At the second of these interviews he was informed that it had been alleged that he had assaulted a prison officer; he was warned that "the facts would be reported in order that consideration could be given whether or not he would be prosecuted for assaulting a prison officer causing bodily harm".
13. Golder wrote to his Member of Parliament on 25 October and 1 November, and to a Chief Constable on 4 November 1969, about the disturbance of 24 October and the ensuing hardships it had entailed for him; the prison governor stopped these letters since Golder had failed to raise the subject-matter thereof through the authorised channels beforehand.
14. In a second statement, made on 5 November 1969, Laird qualified as follows what he had said earlier:
"When I mentioned the prisoner Golder, I said ‘I think it was Golder’, who was present with Frazer, Frape and Noonan, when the three latter were attacking me.
"If it was Golder and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves, I am not certain that he made an attack on me.
"Later when Noonan and Frape grabbed me, Frazer was also present but I cannot remember who the other inmate was, but there were several there one of whom stood out in particular but I cannot put a name to him."
On 7 November, another prison officer reported that:
"... during the riot of that night I spent the majority of the time in the T.V. room with the prisoners who were not participating in the disturbance.
740007, Golder was in this room with me and to the best of my knowledge took no part in the riot.
His presence with me can be borne out by officer ... who observed us both from the outside."
Golder was returned to his ordinary cell the same day.
l5. Meanwhile, the prison authorities had been considering the various statements, and on 10 November prepared a list of charges which might be preferred against prisoners, including Golder, for offences against prison discipline. Entries relating thereto were made in Golder’s prison record. No such charge was eventually preferred against him and the entries in his prison record were marked "charges not proceeded with". Those entries were expunged from the prison record in 1971 during the examination of the applicant’s case by the Commission.
16. On 20 March 1970, Golder addressed a petition to the Secretary of State for the Home Department, that is, the Home Secretary. He requested a transfer to some other prison and added:
"I understand that a statement wrongly accusing me of participation in the events of 24th October last, made by Officer Laird, is lodged in my prison record. I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole.
"I would respectfully request permission to consult a solicitor with a view to taking civil action for libel in respect of this statement .... Alternatively, I would request that an independent examination of my record be allowed by Mrs. G.M. Bishop who is magistrate. I would accept her assurance that this statement is not part of my record and be willing to accept then that the libel against me has not materially harmed me except for the two weeks I spent in the separate cells and so civil action would not be then necessary, providing that an apology was given to me for the libel ...."
17. In England the matter of contacts of convicted prisoners with persons outside their place of detention is governed by the Prison Act 1952, as amended and subordinate legislation made under that Act.
Section 47, sub-section I, of the Prison Act provides that "the Secretary of State may make rules for the regulation and management of prisoners ... and for the ... treatment ... discipline and control of persons required to be detained ...."
The rules made by the Home Secretary in the exercise of this power are the Prison Rules 1964, which were laid before Parliament and have the status of a Statutory Instrument. The relevant provisions concerning communications between prisoners and persons outside prison are contained in Rules 33, 34 and 37 as follows:
"Letters and visits generally
Rule 33
(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.
(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.
...
Personal letters and visits
Rule 34
...
(8) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State.
...
Legal advisers
Rule 37
(1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.
(2) A prisoner’s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer."
18. On 6 April 1970, the Home Office directed the prison governor to notify Golder of the reply to his petition of 20 March as follows:
"The Secretary of State has fully considered your petition but is not prepared to grant your request for transfer, nor can he find grounds for taking any action in regard to the other matters raised in your petition."
19. Before the Commission, Golder submitted two complaints relating respectively to the stopping of his letters (as mentioned above at paragraph 13) and to the refusal of the Home Secretary to permit him to consult a solicitor. On 30 March 1971, the Commission declared the first complaint inadmissible, as all domestic remedies had not been exhausted, but accepted the second for consideration of the merits under Articles 6 para. 1 and 8 (art. 6-1, art. 8) of the Convention.
20. Golder was released from prison on parole on 12 July 1972.
21. In their report, the Commission expressed the opinion:
- unanimously, that Article 6 para. 1 (art. 6-1) guarantees a right of access to the courts;
- unanimously, that in Article 6 para. 1 (art. 6-1), whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer; and that consequently the restrictions imposed by the present practice of the United Kingdom authorities are inconsistent with Article 6 para. 1 (art. 6-1);
- by seven votes to two, that Article 8 para. 1 (art. 8-1) is applicable to the facts of the present case;
- that the same facts which constitute a violation of Article 6 para. 1 (art. 6-1) constitute also a violation of Article 8 (art. 8) (by eight votes to one, as explained to the Court by the Principal Delegate on 12 October 1974).
The Commission furthermore expressed the opinion that the right of access to the courts guaranteed by Article 6 para. 1 (art. 6-1) is not qualified by the requirement "within a reasonable time". In the application bringing the case before the Court, the Government made objection to this opinion of the Commission but stated in their memorial that they no longer wished to argue the issue.
22. The following final submissions were made to the Court at the oral hearing on 12 October 1974 in the afternoon.
- for the Government:
"The United Kingdom Government respectfully submit to the Court that Article 6 para. 1 (art. 6-1) of the Convention does not confer on the applicant a right of access to the courts, but confers only a right in any proceedings he may institute to a hearing that is fair and in accordance with the other requirements of the paragraph. The Government submit that in consequence the refusal of the United Kingdom Government to allow the applicant in this case to consult a lawyer was not a violation of Article 6 (art. 6). In the alternative, if the Court finds that the rights conferred by Article 6 (art. 6) include in general a right of access to courts, then the United Kingdom Government submit that the right of access to the courts is not unlimited in the case of persons under detention, and that accordingly the imposing of a reasonable restraint on recourse to the courts by the applicant was permissible in the interest of prison order and discipline, and that the refusal of the United Kingdom Government to allow the applicant to consult a lawyer was within the degree of restraint permitted, and therefore did not constitute a violation of Article 6 (art. 6) of the Convention.
The United Kingdom Government further submit that control over the applicant’s correspondence while he was in prison was a necessary consequence of the deprivation of his liberty, and that the action of the United Kingdom Government was therefore not a violation of Article 8 para. 1 (art. 8-1), and that the action of the United Kingdom Government in any event fell within the exceptions provided by Article 8 para. 2 (art. 8-2), since the restriction imposed was in accordance with law, and it was within the power of appreciation of the Government to judge that the restriction was necessary in a democratic society for the prevention of disorder or crime.
In the light of these submissions, Mr. President, I respectfully ask this honourable Court, on behalf of the United Kingdom Government, to hold that the United Kingdom Government have not in this case committed a breach of Article 6 (art. 6) or Article 8 (art. 8) of the European Convention on Human Rights and Fundamental Freedoms."
- for the Commission:
"The questions to which the Court is requested to reply are the following:
(1) Does Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights secure to persons desiring to institute civil proceedings a right of access to the courts?
(2) If Article 6 para. 1 (art. 6-1) secures such a right of access, are there inherent limitations relating to this right, or its exercise, which apply to the facts of the present case?
(3) Can a convicted prisoner who wishes to write to his lawyer in order to institute civil proceedings rely on the protection given in Article 8 (art. 8) of the Convention to respect for correspondence?
(4) According to the answers given to the foregoing questions, do the facts of the present case disclose the existence of a violation of Article 6 and of Article 8 (art. 6, art. 8) of the European Convention on Human Rights?"
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58763
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF ELSHOLZ v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;No violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 9. The applicant, a German national born in 1947, lives in Hamburg. He is the father of the child, C., born out of wedlock on 13 December 1986. On 9 January 1987 he acknowledged paternity and undertook to pay maintenance for C. He fulfilled this obligation regularly.
10. Since November 1985 the applicant had been living with the child's mother and her elder son Ch. In June 1988 the mother, together with the two children, moved out of the flat. The applicant continued to see his son frequently until July 1991. On several occasions, he also spent his holidays with the two children and their mother. Subsequently, no more visits took place.
11. The applicant attempted to visit his son with the assistance of the Erkrath Youth Office (Jugendamt), acting as mediator. When questioned by an official of the Youth Office at his home in December 1991, C. stated that he did not wish to have further contacts with the applicant.
12. On 19 August 1992 the applicant applied to the Mettmann District Court (Amtsgericht) for a decision granting him a right of access (Umgangsregelung) to C. on the first Saturday of every month, between 1 p.m. and 6 p.m. The applicant maintained that the mother had refused him access to C. because he had accused her of having failed to ensure the supervision of the child when he had broken his arm in a playground accident in July 1991 and as a result of which he had stopped the voluntary monthly payments of 700 German marks which he claimed to have made at the mother's request in addition to the stipulated child maintenance. The mother contested the applicant's submissions. She stated that the applicant had always been very generous to her but that he had not paid her any maintenance.
13. The District Court, after a hearing on 4 November 1992 and having heard C. on 9 November 1992, dismissed the applicant's request on 4 December 1992. The court observed that Article 1711 § 2 of the Civil Code (Bürgerliches Gesetzbuch) concerning the father's right to personal contact with his child born out of wedlock (see paragraph 24 below) was conceived as an exemption clause which had to be construed strictly. Thus, the competent court should order such access only if this was advantageous and beneficial for the child's well-being. According to the court's findings, these conditions were not met in the applicant's case. The District Court noted that the child had been heard and had stated that he no longer wished to see his father who, according to the child, was bad and had beaten his mother repeatedly. The mother likewise had strong objections to the applicant which she had imparted to the child, so that the child had no possibility of building an unbiased relationship with his father. The District Court concluded that contacts with the father would not enhance the child's well-being.
14. On 8 September 1993 the applicant applied to the District Court for an order requiring the child's mother to consent to a family therapy for him and the child and for an order determining his right of access after contacts with his son had successfully resumed.
15. On 24 September 1993 the Erkrath Youth Office recommended that the court should obtain a psychological expert opinion on the question of access rights.
16. Having heard C. on 8 December 1993 and his parents at an oral hearing on 15 December 1993, the District Court dismissed the applicant's renewed request to be granted access on 17 December 1993.
In so doing, the court referred to its prior decision of 4 December 1992 and found that the conditions under Article 1711 of the Civil Code were not met. It noted that the applicant's relationship with the child's mother was so strained that the enforcement of access rights could not be envisaged as this would not be in the interest of the child's well-being. The child knew about his mother's objections to the applicant and had adopted them. If C. were to be with the applicant against his mother's will, this would put him into a loyalty conflict which he could not cope with and which would affect his well-being. The court added that it was irrelevant which parent was responsible for the tension; it placed particular emphasis on the fact that important tensions existed and that there was a risk that any further contacts with the father would affect the child's undisturbed development in the family of the custodial parent. After two long interviews with the child, the District Court reached the conclusion that his development would be endangered if the child had to take up contact with his father contrary to his mother's will. At these interviews the child had called his father “nasty” or “stupid”, adding that on no account did he wish to see him and said also: “Mummy always says Egbert is not my father. Mummy is afraid of Egbert.”
The District Court furthermore considered that the facts of the case had been established clearly and exhaustively for the purposes of Article 1711 of the Civil Code. It therefore found it unnecessary to obtain an expert opinion.
17. On 13 January 1994 the applicant, represented by counsel, lodged an appeal (Beschwerde) against this decision, requesting that that decision be quashed, that an expert opinion be obtained on the questions of access and of the child's true wishes in this respect, and that the father's access rights be determined accordingly.
18. On 21 January 1994 the Wuppertal Regional Court (Landgericht), without a hearing, dismissed the applicant's appeal. In so doing, it first stated that there were doubts on the admissibility of the appeal as the applicant, by letter of 12 January 1994, had informed the court of first instance that he would respect that court's decision, and had requested help in order to reach a friendly settlement. Furthermore, the Regional Court found that the grounds of appeal contained in his submissions did not fully coincide with the request addressed by the applicant to the court of first instance.
The Regional Court, however, left open the question of whether or not the appeal was inadmissible and decided that in any event the applicant's request for access rights had to be dismissed as access was not in the interests of the child's well-being. It was not sufficient that such contacts were compatible with the child's well-being; they had to be advantageous and beneficial (nützlich und förderlich), and necessary for the child's equilibrium (seelisch notwendiginter alia, the reasons for which the father wished to have contacts with the child, that is, whether his motives were emotional or based on other factors. In this context the relationship between the parents had to be taken into account as well.
The Regional Court concluded, in line with the decision appealed against, that the tensions between the parents had a negative effect on the child, as was confirmed by the hearings with the child held on 9 November 1992 and 8 December 1993, and that contact with his father was not therefore in the child's best interest, even less so because this contact had in fact been interrupted for about two and a half years. It was irrelevant who was responsible for the break-up of life in common. What mattered was that in the present situation contact with the father would negatively affect the child. This conclusion, in the Regional Court's view, was obvious, which was why there was no necessity of obtaining an opinion from an expert in psychology. Moreover, Article 1711 § 2 of the Civil Code did not provide for a psychological therapy to prepare a child for contact with his or her father. The Regional Court finally observed that there was no necessity to hear the parents and the child again since there was no indication that any findings more favourable for the applicant could result from such a hearing.
19. On 19 April 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).
According to the Federal Constitutional Court, the complaint did not raise any issues of a general character affecting the observance of the Constitution. In particular, the question of whether Article 1711 of the Civil Code was compatible with the right to family life as guaranteed by Article 6 § 2 of the Basic Law (Grundgesetz) did not arise, as the ordinary courts had based the denial of the applicant's request for access rights not only on the ground that such a right would not serve the child's well-being, but also on the much stronger reason that it was incompatible with the child's well-being. Furthermore, the right to a fair hearing was not violated by the fact that the applicant had not been heard personally and that his request to obtain an expert opinion had been rejected.
20. The statutory provisions on custody and access are to be found in the German Civil Code (Bürgerliches Gesetzbuch). They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998.
21. Article 1626 § 1 reads as follows:
“The father and the mother have the right and the duty to exercise parental authority [elterliche Sorge] over a minor child. The parental authority includes the custody [Personensorge] and the care of property [Vermögenssorge] of the child.”
22. Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child's relationship with the other parent or seriously interfere with the child's upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child's well-being would be endangered. The family courts may order that right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.
23. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows:
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
24. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:
“Custody over a minor child born out of wedlock is exercised by the child's mother ...”
“1. The person having custody of the child shall determine the father's right of access to the child. Article 1634 § 1, second sentence, applies by analogy.
2. If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child's personal circumstances is set out in Article 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
25. Like proceedings in other family matters, proceedings under former Article 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
26. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
27. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1)(k)).
28. As regards the hearing of parents in custody proceedings, section 50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child's assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-90362
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KATS AND OTHERS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 6. The first and second applicants, Mr Oleg Volodymyrovych Kats and Mrs Tetiana Yakivna Kats, born in 1946, are the father and mother of the late Ms Olga Olegivna Biliak (hereinafter Olga Biliak), who was born in 1971 and died in 2004. The third applicant, Mr Stanislav Ihorovych Beliak, born in 1993, is the son of Olga Biliak. All three applicants live in Kyiv.
7. Olga Biliak had a history of mental illness and drug addiction. At the time of her arrest, she was a registered schizophrenic and infected with HIV (Human Immunodeficiency Virus).
8. On 18 November 2002 the Solomyanskyy District Police Department of Kyiv (Солом'янське РУ ГУ МВС України в м. Києві – “the District Police Department”) instituted criminal proceedings against Olga Biliak and S. for assaulting and robbing a certain A. On 15 January 2003 the cases against Olga Biliak and S. were disjoined. S. was subsequently sentenced to seven years' imprisonment for assault and robbery committed jointly with “another person”.
9. On 16 April 2003 Olga Biliak was charged with robbery.
10. On the next day the Solomyanskyy District Court of Kyiv (Солом'янський районний суд м. Києва – “the Solomyanskyy Court”) ordered Olga Biliak's pre-trial detention.
11. On 27 August 2003 the Solomyanskyy Court convicted Olga Biliak of robbery and sentenced her to eight and a half years' imprisonment.
12. On 25 November 2003 the Kyiv City Court of Appeal (Апеляційний суд м. Києва – “the Court of Appeal”), following an appeal by Olga Biliak, quashed this judgment, remitted the case for further investigation and decided – without stating any grounds – that she should remain in detention. From that point on, according to the applicants, no investigative action was taken and Olga Biliak was on no occasion visited by the investigator.
13. On 1 February 2004 Olga Biliak died in pre-trial detention.
14. On 23 August 2004 the District Police Department discontinued the proceedings against Olga Biliak, in view of her death.
15. On 30 December 2004 the Solomyanskyy Court quashed the District Police Department's ruling and ordered the rehearing of the case. On 29 March 2005 the Court of Appeal dismissed a prosecution appeal against this decision.
16. On 31 January 2006 the Solomyanskyy Court found Olga Biliak guilty of robbery and discontinued the proceedings against her because of her death.
17. On 7 November 2006 the Court of Appeal upheld Olga Biliak's conviction. On the same date that court issued a separate ruling to the effect that, in breach of Article 165-1 of the Code of Criminal Procedure and section 20 of the Pre-trial Detention Act, the authorities had failed to implement immediately the investigator's decision to release Olga Biliak (see paragraph 45 below). The Court of Appeal decided to bring this violation of the domestic law to the attention of the Kyiv City Prosecutor (прокурор міста Києва).
18. On 14 June 2007 the Supreme Court of Ukraine quashed the decisions of 31 January and 7 November 2006, including separate rulings, and remitted the case for fresh consideration to the first-instance court. The proceedings are apparently still pending.
19. The applicants complained on many occasions that the real reason behind Olga Biliak's prosecution was revenge for her refusal to cooperate with officers T. and N. from the Anti-Narcotics Police Department (Відділ по боротьбі з незаконним обігом наркотиків), who had allegedly proposed that she sell drugs seized by the police from street dealers.
20. The applicants have requested on numerous occasions that criminal proceedings be instituted against the above-mentioned police officers; however, all their requests have been rejected.
21. On 14 April 2003 Olga Biliak was arrested and brought to the District Police Department, where she was held until 22 April 2003.
22. On 18 April 2003 (according to some documents not until 18 December 2003), she was examined and X-rayed at the Institute of Physiotherapy and Pulmonology (Інститут фізіатрії і пульмонології). She was found to be healthy.
23. On 22 April 2003 Olga Biliak was transferred to Kyiv City Pre-Trial Detention Centre no. 13 (Київський слідчий ізолятор № 13 – “the SIZO”).
24. Upon her arrival at the SIZO, Olga Biliak was examined by prison doctors, whom she informed that she had been using drugs since 1996. No other complaints were made during this examination. According to the Government, she refused to take an HIV test. She was found to be generally healthy and fit for detention in the SIZO.
25. On 7 May 2003 Olga Biliak wrote in her diary that she had pneumonia.
26. On 18 May 2003 a panel of psychiatrists examined Olga Biliak in the SIZO. It established that she was suffering from schizophrenia, but considered that a more detailed assessment was necessary.
27. On 26 May 2003 the Solomyanskyy Court ordered an in-patient psychiatric examination of Olga Biliak. On the same day she was transferred to a psychiatric hospital.
28. On 18 June 2003, following completion of the psychiatric assessment, Olga Biliak was transferred back to the SIZO and again placed in the shared cell, where she remained until her death on 1 February 2004.
29. The psychiatric panel drew up a report on 1 July 2003. They concluded that Olga Biliak was suffering from a mental disorder but at the time of the offence would have been in control of her actions.
30. On 18 July, 11 August and 20 November 2003 Olga Biliak complained to a SIZO physician that her legs were swollen. She was examined and, since no abnormalities were revealed, no treatment was prescribed for her complaints. However, on the last of these dates Olga Biliak was diagnosed with pyelonephritis.
31. In early September 2003 Olga Biliak wrote in her diary that she had again developed pneumonia.
32. On 25 September 2003 her gastric ulcer worsened. She vomited undigested food and then blood. A paramedic (фельдшер) prescribed “medical activated charcoal” (активоване вугілля).
33. On 26 September 2003 the first applicant lodged a request with the SIZO seeking to have his daughter hospitalised. He attached to that request a letter of 25 September 2003 in which Kyiv City Hospital no. 5 confirmed that Olga Biliak had been HIV-positive since 1999 and had undergone related treatment.
34. On 1 and 21 October 2003 Olga Biliak was examined by a neuropathologist and a psychiatrist, who identified some problems with her mental health.
35. On 3 October 2003 the Governor of the SIZO and the head of its medical unit informed the first applicant that Olga Biliak had been examined by a cardiologist and a neuropsychiatrist and had been diagnosed with vasomotor neurosis (вегето-судинна дистонія) (a dysfunction in the nervous system affecting the blood vessels) and a stomach ulcer. According to them, she did not require inpatient treatment in hospital.
36. On 5 October 2003 Olga Biliak was prescribed a diet.
37. On 1 December 2003 Olga Biliak complained to a prison doctor of general weakness and pain in her lungs. She was diagnosed with chronic bronchitis and multi-drug dependence.
38. According to the entries of December 2003 in Olga Biliak's diary, her state of health started to deteriorate seriously. On 4 December 2003 she had shaking chills and a rising temperature. On 9 December 2003 Olga Biliak wrote that she was losing weight rapidly. On 10 December 2003 she complained of nervous exhaustion, stating that she could hardly eat, being only able to keep down tiny pieces of food. She continued to lose weight very quickly. On 11 December 2003 Olga Biliak recorded that a high temperature had caused her fifth sleepless night. Constant weakness, drowsiness and a high temperature prevented her from going outside for walks. On 12 December 2003 Olga Biliak started to lose herself in time. On 13 December 2003, with her temperature constantly around 40oC, Olga Biliak was given a couple of fever-reducing pills. Her only friend in the cell prepared her tea in the morning, coffee and biscuits during the day and milk with sugar and butter in the evening. On 15 December 2003 Olga Biliak was given another pill and informed that she was to have her lungs X-rayed. Her body temperature that day was 39oC, subsequently receding to 35oC. On 17 December 2003 Olga Biliak was scheduled for an X-ray and given another fever-reducing pill.
39. From mid-December 2003 the applicants and Olga Biliak's lawyer repeatedly requested the authorities to release her on account, inter alia, of her rapidly deteriorating state of health. On 13 January 2004 the Deputy Prosecutor of the Solomyanskyy District of Kyiv (заступник прокурора Солом'янського району м. Києва) and, on 19 January 2004, the investigator dealing with her case, rejected those complaints without addressing the health issues.
40. On 6 January 2004 Olga Biliak complained of stomach pain and was diagnosed with chronic gastritis.
41. On 12 January 2004 Olga Biliak again complained to a physician that she had stomach pains and had vomited undigested food.
42. On 21 January 2004 Olga Biliak was examined by a cardiologist, a psychiatrist and the Head of the Medical Board of the Prison Department (начальник медичного відділу управління Державного департаменту виконання покарань), and underwent an X-ray and a blood test. The X-ray revealed no abnormalities. According to the blood test, there was serious inflammation in Olga Biliak's body. She was diagnosed with acute bronchitis, chronic gastritis, anaemia, cachexia and mental disorders. Her state of health was assessed as being of “medium seriousness”. She was prescribed some anti-inflammatory and light tranquilising drugs, as well as some antibiotics. Olga Biliak was asked if she was HIV-positive. She replied that she was not and refused to take a HIV test. However, that was the date when, according to the Government, the prison doctors started to suspect that she was HIV-positive.
43. On 22 January 2004 the Governor of the SIZO applied to the Head of the District Police Department, stating that Olga Biliak's poor state of health prevented her from participating in any investigative actions and that she needed to be admitted to hospital urgently. He asked that the investigative authorities consider the possibility of her release on an undertaking not to abscond.
44. On 28 and 30 January 2004 Olga Biliak was examined by a SIZO physician. Her state of health was again assessed as being of “medium seriousness” and a recommendation was made to “continue treatment”.
45. On 29 January 2004 the investigator of the District Police Department ordered Olga Biliak's release on health grounds. From the documents submitted by the parties, it is unclear when exactly this decision was received by the SIZO. One available copy of the decision has a stamp of the SIZO on the reverse side and a handwritten date – “30.01.2004”. However, another copy of the decision bears a SIZO stamp for incoming correspondence with the number 2954 and an incoming date of 2 February 2004.
46. On 1 February 2004 at 9.15 p.m. Olga Biliak was visited by a prison doctor who gave her a painkiller and an anti-spasmodic drug. At 9.55 p.m. Olga Biliak died. The death certificate issued on the same day indicated bilateral pleurisy as the cause of death. According to the Government, Olga Biliak's death was caused by acute heart failure.
47. The applicants provided two colour photographs of Olga Biliak's body, which show that she had been in an advanced state of exhaustion when she died.
48. Immediately after Olga Biliak's death, the applicants lodged a criminal complaint against the SIZO staff for negligence.
49. During the investigation into the applicants' complaint, the investigator questioned a SIZO physician, S., who had treated her, and the head of the SIZO medical unit. S. submitted that the deceased had been examined on a number of occasions; the last examination took place on 30 January 2004. According to him, at that time there were no grounds for placing Olga Biliak on the medical ward. She was found to be suffering from bronchitis, drug addiction, anaemia and cachexia. Taking into account her state of health, he had recommended her release.
50. The head of the medical unit testified that on her arrival at the SIZO Olga Biliak had been examined and found to be suffering from drug addiction and certain psychiatric problems (such as hysteria), but in general her state of health had been considered satisfactory. The instructions of the SIZO physician were fully complied with and there had been no reason to transfer her to the SIZO medical wing.
51. The head of the medical unit further stated that on 21 January 2004 he had examined Olga Biliak himself and found her state of health to be satisfactory. On the same day she was examined by the Head of the Medical Board of the Prison Department who diagnosed her with “possible AIDS, acute bronchitis, drug addiction and anaemia” and considered that she should be released on medical grounds.
52. The eight inmates who had shared the cell with Olga Biliak before her death claimed that during her detention she was frequently attended to by doctors and paramedics, and that her health had been satisfactory. Their written testimonies given to the Head of the SIZO are all very brief and drafted using the same style and expressions.
53. According to the autopsy report of 25 March 2004 Olga Biliak died from HIV-related advanced purulent pneumonia. The autopsy also revealed a number of bruises on her hands, legs, left cheekbone and chin.
54. In a decision of 30 April 2004 the investigator found that Olga Biliak's death was not caused by any violence or negligence, and decided not to institute criminal proceedings.
55. On 8 June 2004 the Kyiv Deputy Prosecutor instituted disciplinary proceedings against the employees of the SIZO administrative office for mishandling correspondence, since they had registered the decision of 29 January 2004 and handed it to the Head of the SIZO only on 2 February 2004, although it had been received on 30 January 2004.
56. On 14 June 2004 the Kyiv City Prosecutor's Office (Прокуратура м. Києва) rejected the applicants' request to set aside the decision of 30 April 2004, stating that the investigation had been thorough and complete. During her detention the deceased had had appropriate medical treatment, and had received food and medication from her relatives. Until 21 January 2004 the authorities had had no information about her HIV status.
57. On 18 June 2004, the Governor of the SIZO reprimanded the head of its registry for “antedating the letter from the investigator which contained Olga Biliak's release order”.
58. The applicants challenged the decision of 30 April 2004 before the Shevchenkivskyy District Court of Kyiv (Шевченківський районний суд м. Києва – “the Shevchenkivskyy Court”). On 16 December 2004 the court quashed that decision and ordered further inquiries, finding that the initial investigation had been inadequate and incomplete. It ordered an official postmortem examination of the body and sought to clarify the following issues:
whether Olga Biliak, given her state of health, had been fit for detention in the SIZO;
whether she had received proper medical treatment when in custody;
whether she would have survived if she had been taken quickly to hospital;
exactly when prison doctors had started to treat her health problems;
the time and cause of death.
59. Following this decision, the Shevchenkivskyy District Prosecutor's Office of Kyiv (Прокуратура Шевченківського району м. Києва – “the Shevchenkivskyy Prosecutor's Office”) requested that the authorities of the SIZO carry out additional inquiries into the circumstances of the death of Olga Biliak. Having received no reply, on 21 February 2005 the Shevchenkivskyy Prosecutor's Office decided against instituting criminal proceedings on the ground that there was no indication that her death had been caused by violence or that any other parties had been involved in her death. According to the applicants, they were not informed of this decision.
60. On 21 March 2005 the applicants inquired about the progress of proceedings in the case. In a letter of 11 April 2005 the Kyiv City Prosecutor's Office informed them that the investigations were still ongoing.
61. In August 2005 the applicants, in the course of proceedings concerning their civil action for damages against the SIZO (see paragraphs 68-74 below), learned of the Shevchenkivskyy Prosecutor's Office's decision of 21 February 2005. On 28 September 2005 the Shevchenkivskyy Court, following an application by the applicants, quashed that decision and ordered further investigations. The court found, in particular, that none of the actions indicated in the decision of 16 December 2004 had been taken.
62. It appears that the prosecution authorities were not informed of this decision and, on 17 January 2006, the Kyiv City Prosecutor's Office quashed the February 2005 decision of the Shevchenkivskyy Prosecutor's Office of its own motion and ordered reinvestigation.
63. In the course of the additional investigations the Shevchenkivskyy Prosecutor's Office ordered that further medical evidence be obtained.
64. On 17 November 2006 the Kyiv City Forensic Medical Bureau (Київське міське бюро судово-медичної експертизи – “the Bureau”) issued a report in which it stated that Olga Biliak's death was caused by the hematogenously disseminated tuberculosis affecting the lungs, liver, spleen and other parts of the body, which led to purulent necrotising pneumonia. All these diseases had developed against the background of the concurrent HIV-infection. The lack of correct diagnosis had resulted in a failure to provide appropriate medical treatment; therefore, the death of Olga Biliak had been indirectly caused by the actions of the SIZO officials.
65. On 22 December 2006 the Deputy Prosecutor of the Shevchenkivskyy District of Kyiv requested that the Bureau carry out further examinations with a view to establishing whether Olga Biliak had required urgent hospitalisation in October 2003 and in January 2004 and whether she had received adequate medical assistance during her detention in the SIZO.
66. However, on 25 December 2006 the investigator from the Shevchenkivskyy Prosecutor's Office, taking into account the fact that the reply from the Bureau could not be received before the expiry of the statutory time-limit for reaching a decision on a criminal complaint, decided not to institute criminal proceedings into the death of Olga Biliak as the evidence in the case file did not show that her death had been caused by violence or by the negligence of the SIZO staff.
67. On 12 July 2007 the Shevchenkivskyy Court, acting on an appeal lodged by the applicant, quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in that court's decisions of 16 December 2004 and 28 September 2005. The court ordered that further investigations into the death of Olga Biliak be carried out. The proceedings are apparently still ongoing.
68. On 21 July 2004 the applicants sued the SIZO for non-pecuniary damage incurred on account of the inadequate medical treatment of Olga Bilaik and the failure to hospitalise or release her on medical grounds. They also claimed compensation for burial expenses.
69. On 27 October 2006 the Shevchenkivskyy Court partially allowed these claims. It found, inter alia, that the prison authorities had learned of Olga Bilaik's HIV status on 26 September 2003 from her father's letter. The court further indicated that although the relevant regulations provided that each newly admitted detainee should be examined and interviewed in relation to AIDS or HIV infection, this had never been done in respect of Olga Bilaik. The Shevchenkivskyy Court also established that, contrary to the domestic law, she had not been X-rayed within three days of her arrival at the SIZO. She did not undergo that examination until 18 December 2003.
70. The court further indicated that on 30 January 2004 the Head of the Disrict Police Department had requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004. According to the SIZO incoming mail register this request has been received on 30 January 2004. The decision of 29 January 2004 to release Olga Biliak was registered only on 2 February 2004 with the incoming mail number 2954.
71. The Shevchenkivskyy Court concluded that the applicants had suffered distress on account of the inadequate medical assistance offered to their daughter and mother in the SIZO. The court further stated that:
“It should be noted that [the finding of Olga Bilaik's lack of medical treatment in the SIZO] does not mean that there is a causal link with Olga Bilaik's death, the circumstances of which have not been established during the hearings and are currently being considered by the Shevchenkovsky District Prosecutor's Office of Kyiv in the context of the criminal investigation into the death of Olga Bilaik.”
72. The applicants were awarded 20,000 Ukrainian hryvnas (UAH) in total for non-pecuniary damage. The claim for burial expenses was rejected as unsubstantiated.
73. The SIZO and the applicants appealed against this judgment.
74. On 24 May 2007 the Kyiv City Court of Appeal quashed the judgment of 27 October 2006 and remitted the case for fresh consideration on the ground that the first-instance court had failed to identify the medical staff who had examined Olga Biliak, diagnosed her, prescribed her treatment, etc., and to decide whether they should have participated in the proceedings
75. The relevant extract of the Constitution of Ukraine provides:
Article 27
“Every person has the inalienable right to life.
No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”
Article 28
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
“Human and citizens' rights and freedoms shall be protected by the courts.
Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
Article 56
“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.”
76. The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed. That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4).
77. Article 94 of the Code provides that criminal proceedings shall be instituted in the following cases:
“Criminal proceedings shall be instituted following:
(1) applications or communications from ... individuals; ...
(5) direct detection of signs of a crime by a body of inquiry, investigation, a prosecutor or a court.
A case can be instituted only when there is sufficient information indicating a crime.”
No criminal proceedings can be brought in the absence of a corpus delicti (Article 6).
78. According to Article 165-1 § 3 of the Code, the decision of the body of inquiry, investigator, prosecutor or court to apply, change or discontinue a preventive measure (including pre-trial detention) should be communicated to the person concerned immediately.
79. Article 236-1 of the Code provides:
“Within seven days of notification, a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...”
80. The relevant part of Article 236-2 of the Code provides:
“An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged.
The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed.
Having examined the case, the judge ... may take one of the following decisions:
(1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries...
(2) to dismiss the appeal ...”
81. Articles 1166 and 1167 of the Civil Code, as in force since 1 January 2004, provide for the possibility to claim pecuniary and non-pecuniary damages inflicted as a result of the unlawful decisions, actions or inactivity of an individual or a legal entity, including State bodies.
82. Article 201 § 1 (4) of the Code of Civil Procedure provides in its relevant part:
“The court must suspend its examination of a case if ...it is impossible to hear that case before the termination of another set of civil, criminal or administrative proceedings.”
83. Article 20 § 4 reads as follows:
“Rulings, judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre.”
84. In accordance with Section 6.1.3 of the Rules, all persons should undergo an initial medical examination on their arrival at the SIZO. The results of this examination are entered in the SIZO medical register. During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test.
85. The relevant extracts from the European Prison Rules read as follows:
“Medical services
26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.
2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers.
...
30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
2. The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.”
86. The relevant extract from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 reads as follows:
VIOLATED_ARTICLES: 2
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-70136
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF B. AND L. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 7. The applicants were born in 1947 and 1968 respectively and live in Warrington.
8. The first applicant, B, married A and this marriage ended in divorce in 1987. B and A had a son together, C. The first applicant then married D. The first applicant and D separated in August 1994 and the divorce was finalised on 9 July 1997.
9. The second applicant, L, married C, the first applicant's son from his first marriage. The first applicant and the second applicant were therefore father-in-law and daughter-in-law. The second applicant and C separated in 1995 and their divorce was finalised on 8 May 1997. The second applicant and C have a son together, W. The first applicant is, therefore, W's grandfather.
10. A relationship developed between the first and second applicants in 1995 after C had left the second applicant's matrimonial home. The applicants have been cohabiting since 1996. W lives with the applicants and only has sporadic contact with his father, C. W now calls the first applicant “Dad”. The applicants plan to adopt W which is permitted by domestic adoption law.
11. In a letter dated 29 May 2002, the first applicant wrote to the Superintendent Registrar of Deaths and Marriages at Warrington Register Office to inquire about whether he could marry the second applicant. In a letter dated 13 June 2002, the Superintendent Registrar stated that under the relevant domestic legislation, it would be impossible for the applicants to marry unless A and C were both dead:
“... The only circumstances a marriage could be allowed between yourself and [L] would be if you had both attained the age of twenty one and you could produce evidence of the death of your son and his mother (your first wife).”
12. The applicants subsequently sought legal advice on whether there was any remedy against the decision of the Superintendent Registrar but were advised by counsel that no remedy existed since the basis for the decision was primary legislation, namely, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986.
13. Section 1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, (“the 1949 Act”), provides that:
“(4) Subject to subsection (5) of this section, a marriage solemnized between a man and any of the persons mentioned in the first column of Part III of the First Schedule to this Act or between a woman and any of the persons mentioned in the second column of the said Part III shall be void.
(5) Any such marriage as is mentioned in subsection (4) of this section shall not be void by reason only of affinity if both parties to the marriage have attained the age of twenty-one at the time of the marriage and the marriage is solemnized –
...
(b) In the case of a marriage between a man and the former wife of his son, after the death of both his son and the mother of his son;
(c) In the case of a marriage between a woman and the father of a former husband of hers, after the death of both the former husband and the mother of the former husband;
...”
14. Part III of the First Schedule to the 1949 Act contains lists of persons between whom marriage is prohibited. The first column referred to in section 1(4) of the Act includes the former wife of a man's son and the second column includes the father of a woman's former husband.
15. The 1949 Act contained an absolute prohibition on marriages between former father-in-law and daughter-in law until section 1(5) was introduced by the Marriage (Prohibited Degrees of Relationship) Act 1986 (“the 1986 Act”).
16. By virtue of section 1(3) of the 1949 Act (as amended), marriages between former step-parents and step-children are not void if both parties have attained the age of 21 and the younger party was never “a child of the family” in relation to the other party. The 1949 Act does not stipulate that marriages between an uncle and niece or an aunt and nephew are void in cases where there is no consanguinity between the two parties.
17. Prior to the enactment of the 1986 Act, a report, entitled “No Just Cause: Affinity: Suggestions for Change” was drawn up in 1984 by a group appointed by the Archbishop of Canterbury, including members of the House of Lords, on the question of the prohibition of marriages on the grounds of affinity. This report suggested some of the amendments to the law made in the 1986 Act. A report drawn up by the majority concluded that:
“Most, perhaps, all, members of the Group started from an intuitive reaction that it was not only unlawful to marry one's mother-in-law or father-in-law, but also that it was undesirable, and perhaps sinful and perilous. But as we studied and discussed the accumulating material we gradually came to recognise that the prohibition is based simply on tradition and cannot now be justified on any logical, rational or practical ground. The experience of other states where there has never been such a prohibition provides a strong and persuasive argument for abolishing these impediments on marriage. In our view, the retention of these legal impediments is not essential to the maintenance of healthy and stable relationships within the extended family.
...
The younger person in the above lists will scarcely ever have been a child of the family of the older person before the younger person had attained the age of 18. Moreover, he or she will also have married (at least once) and for that ceremony the law and society will have treated him or her as having had the capacity and maturity to marry. Thus our principal concern of wishing to afford some protection to the younger person in those circumstances would be satisfied if the existing legal impediments preventing a lawful marriage being solemnised between a man and a woman and his or her affine in classes C and D [parent-in-law and child-in-law] were removed”
18. The minority report recommended the “retention of the impediment on marriage between parent-in-law and child-in-law” on the basis that it raised the same difficulties as step-parent and step-child, namely it “would condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the father and son, or mother and daughter, relationships”:
“... In addition ... it would deprive the child-in-law of his or her safety of place as a child in the new family into which he or she marries. When for instance a son brings his wife to his father's home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt of sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family.”
19. The bill as put forward for adoption represented the common ground between the majority and minority views – it excluded change for the impediment for in-laws and removed the impediment for step relations, where both parties were over 18 and the younger party had never been treated as a child of the family.
During the consideration of the bill which became the 1986 Act in the House of Lords, Lord Denning unsuccessfully proposed an amendment which would remove the impediment to a parent-in-law marrying his or her child-in-law. He argued that this was necessary in order to make the law consistent since the bill would remove the impediment to a step-parent marrying his or her step-child and the case of a parent-in-law and child-in-law was, if anything, less problematic. However, this proposed amendment was not adopted.
20. It is possible for a marriage between a former parent-in-law and child-in-law to be permitted in individual cases by a personal Act of Parliament. The personal Act effectively exempts the individuals from the application of a statutory prohibition on marriage. Whether such an Act is passed or not is at the discretion of Parliament.
21. Such personal Acts have been passed several times in the past although no Act of this nature has been sought or passed since 1987. For instance, in the Valerie Mary Hill and Alan Monk (Marriage Enabling) Act 1985, Parliament permitted the proposed marriage between Valerie Hill, the mother of Alan Monk's first wife, and Mr Monk. At the time of this personal Act, the 1986 Act had not yet been passed and, therefore, there was an absolute prohibition under the 1949 Act on marriage between parents-in-law and children-in-law. In considering the personal bill, several members of the House of Lords noted that the facts of the case were not “exceptional”. The resulting personal Act set out the facts of the case, from which it appeared the couple were living in the same household and wished to bring up the children of the son-in-law (and grandchildren of the mother-in-law) in a stable home. It continued:
“ ... (8) Valerie Mary Hill and Alan Monk regard the legal impediment to their marriage as imposing hardship on them, and as serving no useful purpose of public policy in the particular circumstances of their case:
(9) They accordingly desire that the impediment should be removed in their case:
(10) The object of this Act cannot be attained without the authority of Parliament:
Therefore Valerie Mary Hill and Alan Monk most humbly pray that it may be enacted, and be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
1. Notwithstanding anything contained in any enactment or any rule of law to the contrary, there shall be no impediment to a marriage between Valerie Mary Hill and Alan Monk by reason of their relationship of mother-in-law and son-in-law, and no marriage hereafter contracted between them shall be void by reason of that relationship.
...”
22. There are no established criteria for the granting of a personal Act of Parliament in order to permit a marriage otherwise prohibited by the 1949 Act. There is no investigation into the facts as submitted by the individuals in question. The costs of obtaining a personal Act of Parliament are GBP 200 at the First and Third Reading of the bill in each House of Parliament, amounting to GBP 800, plus the fees of a “Roll A” Parliamentary Agent, who is the only person permitted to promote a personal bill. Legal aid is not available for the costs of obtaining a personal Act of Parliament.
23. This procedure of seeking a personal Act of Parliament in order to authorise an otherwise prohibited marriage was commented on by Viscount Davidson in the House of Lords during the passage of the 1986 Act in the following terms:
“... Parliament has from time to time enacted laws enabling particular couples to marry, notwithstanding that they are related as step-parent to step-child or parent-in-law to child-in-law. I do not think that anyone has suggested that this is a particularly suitable way of deciding whether two people so related should be allowed to marry. It has been criticised as cumbersome, expensive and unseemly. In the Second Reading of the Sonia Ann Billington and Norbury Billington (Marriage Enabling) Bill, my noble and learned friend the Lord Chancellor said that it offended his sense of justice that the House should be asked to decide without evidence whether a couple should be enabled to marry ...” (Viscount Davidson, HL Hansard 9 December 1985, col. 59)
Lord Meston stated during the debate:
“Personal Bills are costly, embarrassing and time-consuming for this House. They add to the anxieties of the couple who should of course be a happy couple. They always receive a sympathetic hearing and the three recent Bills involving mature step-relations have passed through this House without any great difficulty. But it all tends to suggest that there is one law for those who hear of the procedure and who can afford it in its practical consequences. Apart from a personal Bill or going abroad the other alternatives are for the couple either to live together without marriage, without consequences such as illegitimacy and the lack of any widows' pension for the lady or for them to part with consequential distress for all concerned.”
24. Section 4 of the Human Rights Act 1998 provides:
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(6) A declaration under this section ... -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
25. Section 10 provides:
“(1)This section applies if -
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (...)
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
26. The 1998 Act entered into force on 2 October 2000.
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