ITEMID: 001-57516
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1960
DOCNAME: CASE OF LAWLESS v. IRELAND (No. 1)
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (incompatibility);Questions of procedure rejected
TEXT: The purpose of the Commission's Request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Respondent Government has failed in its obligations under the Convention.
As appears from the Commission's Request and from its Memorial, Mr. Lawless alleges in his Application that there has been a violation of the Convention in his case, by the authorities of the Republic of Ireland, inasmuch as he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland, in pursuance of an Order made by the Minister of Justice under section 4 of the Offences against the State (Amendment) Act, 1940. The special powers of arrest and of detention allowed to Ministers of State by this Act are said to have been brought into force on 8th July 1957, by a proclamation made and published by the Irish Government on 5th July 1957.
After being declared admissible on 30th August 1958, the Request was dealt with by the Commission according to the procedure laid down in Articles 28 and 29 (art. 28, art. 29) of the Convention. It proved impossible to secure a friendly settlement, and the Commission therefore drew up the Report called for by Article 31 (art. 31) of the Convention. This Report was adopted by the Commission on 19th December 1959, the majority holding that there had been no breach of the Convention on the part of the Irish Government and that no action should be taken on the Applicant's suit for damages.
After transmitting this Report to the Committee of Ministers of the Council of Europe on 1st February 1960, in accordance with Article 31, paragraph 2 (art. 31-2), of the Convention, the Commission decided at its meeting of 1st April 1960, to avail itself of the possibility offered by Articles 44 and 46 (art. 44, art. 46) of the Convention, and refer the Lawless case to the Court for final decision.
In support of this step, the Commission recalled in its Memorial that an opinion stated by it under Article 31 (art. 31) of the Convention as to whether or not the facts found disclosed a breach of the Convention would not be conclusive. The Commission pointed out that under Article 32, paragraph 1 (art. 32-1), of the Convention, if a question were not referred to the Court, it rested with the Committee of Ministers to decide, by a majority of two-thirds, whether or not there had been a violation of the Convention.
In view of the fundamental importance of the legal problems raised in this case - and particularly of the questions arising in relation to Article 15 (art. 15) of the Convention - the Commission deemed it advisable to refer the case to the Court, though without qualifying in any way its own opinion on the subject as expressed in the Report.
At the meeting held on 1st June 1960, in accordance with Rule 35, paragraph 1, of the Rules of Court, and in its Memorial of 27th June 1960, the Commission stated that, in conformity with Rule 76 of its Rules of Procedure, it had, on 13th April 1960 - that is, after referring the case to the Court - transmitted the Report to the Applicant, inviting him to submit his observations to the Commission.
In submitting the Report to the Applicant the Commission pointed out that that document must be kept secret and that the Applicant was not entitled to publish it.
Rule 76 of the Rules of Procedure of the Commission runs as follows:
"When a case brought before the Commission in pursuance of Article 25 (art. 25) of the Convention is subsequently referred to the Court, the Secretary of the Commission shall immediately notify the Applicant. Unless the Commission shall otherwise decide, the Secretary shall also in due course communicate to him the Commission's Report, informing him that he may, within a time-limit fixed by the President, submit to the Commission his written observations on the said Report. The Commission shall decide what action, if any, shall be taken in respect of these observations."
In its Memorial, the Commission declared its readiness "to submit to the Court the Applicant's comments upon the Report as a document relevant in the present proceedings". However, instead of communicating these comments on its own initiative, the Commission thought appropriate, at this preliminary stage of the procedure, to request the Court for leave to file the memorandum containing the Applicant's comments as a document submitted by the Commission.
In the pleadings, the following submissions were made in regard to the procedure alone:
by the Commission, in its Memorial:
"May it please the Court:
(1) to give leave for the Commission to submit to the Court the Applicant's comments on the Commission's Report as one of the Commission's documents in the case; and
(2) in general, to give directions as to the right of the Commission to communicate to the Court the comments of the Applicant in regard to matters arising in the present proceedings".
by the Irish Government, in their Counter-Memorial:
"May it please the Court:
(1) to decline jurisdiction in the present case unless the Commission satisfies the Court that between 19th December 1959 and
1st February 1960, the question of reference of the case to the Court was not discussed in any way by the Commission;
(2) to refuse to entertain the case while the delay on the part of the Commission in transmitting its Report to the Committee of Ministers and to the Government has not been satisfactorily explained;
(3) to declare that any publication by the Commission of its Report other than that expressly authorised by the Convention, is a breach of the obligations imposed on the Commission by the Convention;
(4) to rule that the comments of the Applicant on the Report of the Commission and the further comments of the Applicant on matters arising in the present proceedings be not received by the Court:
(a) because no argument in favour of their admission has been submitted by the Commission, and
(b) because the admission of such comments would be an oblique method of amending the Convention, and
(c) because such comments have come into existence only through a breach by the Commission of its obligations of secrecy, and
(d) because in the circumstances of the present proceedings such comments are not material;
(5) to declare that a correct interpretation of the Convention does not permit of action of the nature contemplated by Rule 76 of the Rules of the Commission".
At the hearing of 3rd October 1960, the Commission made the following submissions:
May it please the Court to reject the preliminary objections to the Court's jurisdiction formulated in paragraph 4 of the Respondent Government's Counter-Memorial.
May it please the Court to decide that the provisions of Rule 76 of the Commission's Rules of Procedure and the Commission's communication of its Report on the present case to the Applicant fall within the competence conferred upon the Commission by the Convention, and to reject the preliminary objection formulated in paragraph 5 of the Respondent Government's Counter-Memorial.
“May it please the Court:
(a) to give leave to the Commission to transmit to the Court the written comments of the Applicant upon the Commission's Report;
(b) to give such directions as the Court may consider appropriate as to the right of the Commission to communicate to the Court the comments of the Applicant in regard to matters arising in the present proceedings;
(c) to reject the submissions formulated in paragraph 6 of the Respondent Government's Counter-Memorial."
At the hearing of 3rd October 1960, the Agent of the Irish Government, in view of the explanations furnished by the Delegate of the Commission during his oral pleading, withdrew the preliminary objections appearing as Nos. 1 and 2 in his Government's Counter-Memorial.
The following submissions, relating to the preliminary objections and questions of procedure raised during the present proceedings, were presented by the Agent of the Irish Government at the hearing of 4th October 1960:
"May it please the Court:
(1) to declare that any publication by the Commission of its Report, other than that expressly authorised by the Convention, is a breach of the obligations imposed on the Commission by the Convention;
(2) to rule that the comments of the Applicant on the Report of the Commission be not received by the Court;
(3) to rule that no further comments of the Applicant on matters arising in the present proceedings may be received by the Court;
(4) to declare that a correct interpretation of the Convention does not permit of action of the nature contemplated by Rule 76 of the Rules of the Commission."


ITEMID: 001-22103
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: STOKAS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant, Konstantinos Stokas, is a Greek national, born in 1951 and lives in Grevena. He is represented before the Court by Mr N.Frangakis, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 October 1993 a car driven by the applicant’s brother, which also carried the latter’s wife and their two children, deviated from its course, entered abruptly into the opposite circulation lane and crashed into a truck coming from the opposite direction. The collision had as a result the death of all the passengers of the car.
The site of the accident was inspected and it was found that the road surface at the collision point was slippery, due to the rain which had fallen. It was also established that the car’s speed was higher than the maximum permitted speed in that sector. An expert’s report concluded that because the load of the truck, its power and mass, it was impossible for it to maoeuvre and had caused the truck to drag the car backwards with only a small speed.
A preliminary investigation (proanakrisi) was initiated ex officio immediately, pursuant to Article 243 of the Code of Criminal Procedure. On 19 December 1994 the case file was sent to the First Instance Criminal Court of Kozani.
On 29 July 1994 the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons. He also notified the public prosecutor at the First Instance Criminal Court of Kozani that he wished to take part in the criminal proceedings as a civil party. He asked for 400 drachmas by way of compensation for non-pecuniary damage, expressly reserving his right to pursue the remainder of his claim before the civil courts.
On 16 October1995 the applicant brought an action before the Single-Member First Instance Civil Court (Monomeles Protodikio) of Kozani against the driver of the truck and the insurance companies seeking compensation for non-pecuniary damage of an amount of 26 000 000 drachmas. The examination of the case was adjourned because the criminal proceedings were pending.
The preliminary investigation lasted until November of 1995. A great number of witnesses was heard. On 18 December 1995 the file was sent to the public prosecutor at the Kozani criminal court.
On the 18 December 1995 the applicant submitted an application to the public prosecutor at the Kozani criminal court, pursuant to Article 246 § 3 of the Code of Criminal Procedure, requesting that the preliminary investigation should be complemented by a full investigation (kyria anakrisi). Such an order was given on 21 February 1996.
On 12 February 1997 the public prosecutor pressed charges for homicide by negligence against the driver of the truck and the representatives of the company that owned the vehicle.
On 8 June 1997 the Indictments Division of the First Instance Criminal Court (Symvoulio Plimmeliodikon) of Kozani decided not to bring charges against the accused. It held that the steering system and brakes of the truck were functioning satisfactorily and that the truck driver could not be accused of reckless driving but had been unable to avoid the collision because of the negligent conduct of the applicant’s brother. The latter was imprudent, was driving at an excessive speed and violated the double separation line of the road.
On 14 July 1997 the applicant filed an appeal against the above decision of the indictments division. He complained that the decision was not sufficiently reasoned and that the Indictments Division had applied the relevant legislation erroneously.
On 14 January 1998 the applicant’s appeal was dismissed by the Indictments Division of the Court of Appeal (Symvoulio Efeton) of Western Macedonia (decision 21/1998). The Indictments Division confirmed the first instance decision and reiterated that the collision was due to the exclusive responsibility of the applicant’s brother.
On 5 March 1998 the applicant’s civil action came for hearing before the Kozani civil court. The court heard a number of witnesses and examined the other evidence in the case.
On 4 May 1998 the applicant appealed on points of law against the decision of 14 January 1998 of the Indictments Division of the Court of Appeal.
On 8 May 1998 the civil court dismissed the applicants’ action on the merits (judgment 211/1998). It held that the applicant’s brother was entirely responsible for the accident and that the truck’s tyres and the fact that it was overloaded had no causal link to the accident and the fatal injury of the applicant’s brother and his family.
On 6 August 1998 the Court of Cassation set aside the decision of the Indictments Division of the Court of Appeal on the ground that it did not contain sufficient reasons, in the sense that the court of appeal had only made a general reference to the evidence before it and it could not, therefore, be deduced whether it had taken it all into consideration. In order to be re-examined, the case was referred back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition.
On 8 September 1998 the Indictments Division of the Court of Appeal of Western Macedonia ruled that there was no case for the accused to answer (decision 84/1998).
On 14 September 1998 the applicant lodged an appeal with the Court of Cassation against the second decision of the Indictments Division of the Court of Appeal. He claimed that the decision did not set out with sufficient clarity the relevant circumstances and evidence on which it was based.
On 14 October 1998 the Court of Cassation upheld the appeal on the ground that the impugned decision was lacking sufficient reasoning and referred the case back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition. In particular, the Court of Cassation found that the appealed decision’s reasoning did not elaborate fully and clearly on the evidence bearing on the co-responsibility of the accused for the accident.
On 19 October 1998 the Indictments Division of the Court of Appeal decided for the third time not to press charges against the accused. It held that there were not sufficient indications pointing to the guilt of the defendant. For the third time, the Indictments Division held that the driver of the car had been driving at an excessive speed under the circumstances, as it transpired from the deposition of the driver of the car moving behind the applicant’s brother. No liability could be established for the defendant, having regard to the conclusions reached after the inspection of the site of the accident, the diagram which was drawn up. It transpired that the defendant was driving at 45 km/h, that is under the speed limit, was overloaded and circulating at the far right of his own traffic lane. The fact that the applicant’s brother’s car was dragged by the truck down the road was attributed to the slippery road and the defendant’s confusion at the time of the collision.
On 22 October 1998 the applicant appealed on points of law to the Court of Cassation.
On 26 January 1999 the Court of Cassation dismissed the appeal on the ground that the action had become statute-barred. In particular, the Court of Cassation held that the five-year period of limitation provided by the law for involuntary homicide had lapsed and thus the punishable character of the act allegedly committed by the defendant had disappeared.
Under Article 111 § 2 of the Criminal Code misdemeanours (plimmelimata), such as the offence for which the driver and the representatives of the company would have been tried, are subject to a five-year prescription period, starting from the moment the offence takes place. According to Article 113 of the Criminal Code, the investigation and interlocutory proceedings (e.g. the proceedings before the indictments chambers) does not interrupt the running of the prescription period.


ITEMID: 001-108961
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PROSHKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1-e - Persons of unsound mind);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. The applicant was born in 1963 and lives in Perm.
7. On 18 October 1996 the applicant was involved in a traffic accident committed by a Mr P. The applicant, his wife and son were injured and the applicant’s car was damaged. Criminal proceedings against Mr P. were discontinued in accordance with an amnesty law.
8. Mr P. and his mother complained to the police that they had been subjected to constant harassment by the applicant, who had repeatedly threatened them in a number of phone calls and had allegedly demanded money in compensation for pecuniary and non-pecuniary damage sustained as a result of the traffic accident.
9. On 29 March 1999 the Industrialniy District Court of Perm issued a decision, authorising the institution of criminal proceedings against the applicant on suspicion of aggravated defamation and insulting behaviour.
10. In July 1999 Mr P. petitioned the Perm Regional Prosecutor to detain the applicant and to subject him to a psychiatric examination because the harassment had not stopped and had even escalated to death threats against both Mr P. and his mother. Twenty days later Mr P.’s lawyer repeated the request.
11. On 24 September 1999 another set of criminal proceedings was instituted against the applicant who, in these proceedings, was under suspicion of having made death threats.
12. On 5 November 1999 the two sets of criminal proceedings were joined and the applicant’s placement in custody was authorised. He was placed in temporary detention facility no. IZ-59/1 in Perm (hereinafter “facility no. 1”).
13. The applicant lodged a complaint with the Industrialniy District Court, alleging that his arrest was unlawful.
14. On 25 November 1999 the District Court dismissed the complaint, confirming the lawfulness of the arrest. That decision was upheld on appeal by the Perm Regional Court on 22 December 1999.
15. On 6 December 1999 a prosecutor authorised an extension of the applicant’s detention until 5 February 2000. On 18 January 2000 the Industrialniy District Court rejected the applicant’s subsequent appeal against the extension, noting the gravity of the charges against him.
16. Whereas the investigation in the criminal case continued, the applicant was released on 4 February 2000 on a written undertaking not to leave the town.
17. On 31 August 2000 the Industrialniy District Court, having held hearings in the applicant’s presence, found him guilty of aggravated defamation and extortion, acquitted him of the remaining charges and sentenced him to seven years’ imprisonment. On the same day the applicant was taken to facility no. 1.
18. Following the appeal hearing which the applicant attended, on 9 November 2000 the Perm Regional Court quashed the judgment, acquitted him of aggravated defamation and ordered a fresh examination into the charge of extortion. The applicant was released on the same day under a written undertaking not to leave the town.
19. In accordance with the order of the Regional Court, on 18 January 2001 the Industrialniy District Court authorised an additional investigation into the charge of extortion.
20. On 26 March 2002 the District Court further ordered a psychiatric assessment of the applicant. That decision was upheld on appeal on 30 April 2002 by the Perm Regional Court, which, in so far as relevant, held as follows:
“As appears from the case file materials, [the applicant] is accused of having committed criminal offences which resulted from the fact that in 1996 his family had been involved in a traffic accident caused by a driver, Mr P. Criminal proceedings against Mr P. were discontinued in accordance with an amnesty law. [The applicant] did not accept the outcome of the criminal case and began complaining to various institutions and authorities. Having received replies, he began making numerous written requests asking to have the authorities who had dealt with his complaints, including his lawyer who had represented his interests, held liable. In December 1999 the investigating authorities, having doubts that [the applicant] was mentally healthy, ordered a forensic psychiatric examination. Experts concluded that [the applicant] did not have a psychiatric illness, but [that] he was a psychopath. However, the stream of complaints and motions subsequently intensified; the circle of people against whom he asked [for a] criminal investigation to be opened due to their alleged failure to carry out their duties broadened. Having regard to those facts, [the District] court found that it was necessary to perform an additional examination.”
21. According to the Government, the examination was scheduled for 31 July 2002. However, the applicant refused to attend it and the Industrialniy District Court ordered his being brought for examination against his will.
22. On 26 October 2002 the applicant was apprehended in Perm and taken to the Serbskiy State Scientific Centre of Social and Forensic Psychiatry in Moscow (hereinafter “the Centre”). A month later the Centre issued an expert report finding that the applicant suffered from schizophrenia. The expert conclusions were based, inter alia, on the following considerations:
“[The diagnosis] is confirmed by the medical history, showing that since adolescence [the applicant] has acute premorbid personality traits such as hyperactivity, the urge to become a self-reliant person [and] an intense feeling of injustice, with subsequent slowly growing psychopathic changes (extreme straightforwardness, intolerance, contentiousness, rudeness, unsociability, arrogance) and a tendency to establish obsessive interests (all-absorbing passion for technical equipment [and] jurisprudence) which transformed into affective, obsessive [and] absurd ideas, relations, querulous paranoia, litigiousness over an extremely broad number of subjects and involving a large number of people, which led to his incorrect behaviour, litigious activities and malfunctioning social adaptation.”
The applicant was released from the Centre on 21 November 2002.
23. Another psychiatric examination of the applicant was ordered by the Industrialniy District Court on 10 January 2003.
24. On 27 January 2003 the District Court issued two decisions authorising the applicant’s arrest on the grounds that he had been charged with a particularly serious criminal offence and the forensic psychiatric examination had established that he “suffered from schizophrenia [and] presented a danger to society”. The decisions, one handwritten and the other one typed, were identical in wording save for one difference. By the first decision the District Court ordered the applicant’s placement in a psychiatric hospital. By the second decision it authorised his detention in detention facility no. 1 in Perm. The applicant attended the hearing.
25. The applicant provided the Court with copies of the two decisions, both bearing the presiding judge’s signature and the court’s stamp. The Government explained that on 27 January 2003 the presiding judge had issued a handwritten detention order authorising the applicant’s admission to a psychiatric hospital. Subsequently, the court registry had prepared a typed version of the same decision. The Government argued that the case file materials had not contained the second decision ordering the applicant’s detention in facility no. 1. The applicant was taken into custody in the court house and taken to detention facility no. 1.
26. The applicant lodged an appeal against the decision of 27 January 2003. He complained that there had been no evidence that he was a danger to society and that, accordingly, there was no need to detain him. As follows from the stamp on the statement of appeal, the Perm Regional Court received it on 29 January 2003.
27. On 31 January and 1 February 2003 the applicant lodged additional statements of appeal, further challenging the grounds for his arrest. Stamps on the statements show that they reached the Perm Regional Court on 31 January and 2 February 2003 respectively.
28. The applicant’s appeals against the decision of 27 January 2003 never received a reply.
29. It appears that on 17 and 18 February 2003 the Industrialniy District Court held trial hearings. While the applicant’s lawyer and mother attended, the applicant was not brought to the courthouse. The District Court did not issue any formal decision addressing his absence from the trial. However, as it follows from the case file, the matter was raised and discussed leading to the presiding judge’s conclusion that the applicant’s presence was unnecessary.
30. On 18 February 2003 the Industrialniy District Court held that the applicant had committed aggravated extortion but relieved him from criminal responsibility, finding that he was mentally incapacitated. The District Court ordered the application of compulsory measures of a medical nature to the applicant and his placement in a psychiatric hospital for intensive care. The relevant part of the decision read as follows:
“... Having regard to the fact that [the applicant] suffers from a mental illness, he is inclined to reoffend, including by committing particularly serious [criminal offences], he distinguishes himself by [behaving] aggressively, by [being] intolerant to other individuals, it is necessary to commit him to compulsory treatment in a special psychiatric hospital with intensive care”.
31. On 20 February 2003, in response to the District Court’s order of 10 January 2003, the Perm Regional Clinical Psychiatric Hospital issued an expert report, confirming the findings made by the experts of the Centre.
32. On 15 April 2003 the Perm Regional Court held an appeal hearing. The applicant was not brought to it, despite his requests to that effect. Both his lawyer and his mother were present. The Regional Court examined the applicant’s complaint of failure to ensure his presence at the trial hearings and found that the District Court had acted lawfully because the domestic law did not require his presence. It also pointed out that the applicant had been represented by his mother and a lawyer. Having been fully convinced by the District Court’s findings, the Regional Court upheld the decision of 18 February 2003.
33. In the meantime, the Industrialniy District Prosecutor filed a motion with the District Court seeking a declaration of the applicant’s incapacity. The prosecutor argued that the applicant should be deprived of legal capacity for reason of insanity.
34. On 6 May 2003 the Industrialniy District Court found that the applicant suffered from a chronic mental illness, he was unable to appreciate his conduct and its danger to society or to control his actions, and he was in need of constant supervision. The District Court declared the applicant legally incapacitated. The applicant did not appeal against that decision.
35. According to the Government, the applicant was detained in facility no. 1 in Perm until 24 July 2003 because his transfer to a specialised psychiatric hospital in Kaliningrad was delayed as the Russian authorities had failed to obtain a visa permitting the applicant’s transit through Lithuania. Relying on a statement by a representative of the Ministry of Justice of the Russian Federation, the Government submitted that during the entire period of his detention in facility no. 1 the applicant had been detained in a cell designated for mentally ill inmates.
36. On 24 July 2003 the applicant’s transfer to a psychiatric hospital in Kazan was authorised. The hospital, however, refused to admit him because he did not have a valid identity document. The applicant therefore continued being detained in detention facility no. 1 until 18 August 2003. On that date he was sent to the psychiatric hospital in Kazan. On 4 June 2004 he was released from the hospital.
37. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the CCrP”).
38. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and detention on remand (Article 98 of the CCrP).
39. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
The CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
40. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
41. The CCrP sets a general rule permitting defendants to be detained on remand if the charge carries a sentence of at least two years’ imprisonment. In exceptional cases, the Code permits detention of defendants on a charge carrying a sentence of less than two years’ imprisonment, if they have previously defaulted, have no permanent residence in Russia or if their identity cannot be ascertained. A defendant should not be detained on remand if a less severe preventive measure is available (Articles 97 § 1 and 108 § 1).
42. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). The right to appeal against a judicial decision belongs to a defendant, his representative and legal guardian, a prosecutor, a victim and his representative (Articles 127 § 1 and 354 § 4).
43. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including detention on remand (Article 255 § 1). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 256).
44. An appeal against such a decision lies to a higher court. It must be examined within the same time-limit as an appeal against the judgment on the merits (Article 255 § 4).
45. The Criminal Code of the Russian Federation, in force since 1 January 1997, and the Code of Criminal Procedure of the Russian Federation set out the grounds and procedure for the application of compulsory measures of a medical nature.
“1. Compulsory measures of a medical nature may be applied by a court to individuals:
(a) who, in a state of insanity, committed an offence described in [...] the ... present Code;
(b) who, after having committed a criminal offence, became mentally ill, making it impossible to sentence him and execute that sentence;
(c) who committed a criminal offence and who suffer from a mental illness, which does not [reach the level of insanity];
(d) who committed a criminal offence and who were considered in need of treatment for alcoholism or drug abuse.
2. Compulsory measures of a medical nature shall only be applied to people [falling within the situations] listed in the first paragraph of the present Article in cases where the mental disorders are linked to the ability of those persons to cause substantial damage or to present a danger to themselves or other individuals.”
“1. When it is established that a person to whom detention on remand has been applied as a measure of restraint suffers from a mental illness, a court, upon a prosecutor’s motion and in accordance with the procedure laid down in Article 108 of the present Code, shall take a decision authorising a transfer of that person to a psychiatric hospital.
2. Placement of a person who is not detained on remand in a psychiatric hospital may be authorised by a court in accordance with the procedure laid down in Article 203 of the present Code.”
“1. When a court finds it proven that a criminal offence was committed by that person in a state of insanity or that after having committed a criminal offence the person became mentally ill, making it impossible to sentence him and execute the sentence, the court shall take a decision in accordance with Articles 21 and 81 of the Criminal Code of the Russian Federation reliving that person from criminal responsibility or from serving the sentence and authorising the application of compulsory measures of a medical nature to him...”
“A court decision may be appealed against by a representative, a victim and his representative, a legal guardian or close relative of a person in respect of whom a criminal case was examined, and by a prosecutor in accordance with Chapter 45 of the present Code.”
“1. Presence of a defendant at a court hearing in a criminal case is mandatory, save in the circumstances which are listed in paragraph 4 of the present Article.
2. If a defendant fails to attend, the examination of a case should be adjourned.
...
4. A court hearing may be held in the defendant’s absence if a defendant in a criminal case concerning a minor criminal offence or [a criminal offence] of average severity asks for the examination of that criminal case in his absence.”
“1. When [a judge] receives a criminal case with a statement of appeal, [he] shall fix the date, time and place of a court hearing.
2. An appellate court shall inform the parties of the date, time and place of the examination of a criminal case no later than 14 days before the hearing. The court shall determine whether [it is necessary] to call a defendant who is in custody.
3. If a defendant who is in custody informs [the court] of his willingness to take part in the examination of the appeal against the trial judgment, he has the right to take part in a hearing in person or can state his position by way of a video conference. The court shall determine the form of the applicant’s participation in a hearing...”
46. Section 51 of the Russian Code of Criminal Procedure lays down procedural norms for the examination of a criminal case against a person who is charged with having committed a criminal offence in a state of insanity or who became mentally ill after having committed a criminal offence when he can no longer bear criminal responsibility and serve a sentence. By virtue of Section 51 of the CCrP, the courts shall examine a criminal case against such a person in an ordinary manner, save for specific rules laid down in that Section. Section 51 does not set any specific rules concerning the presence of a mentally ill person at trial and appeal hearings.
47. Under Article 21 of the Civil Code of the Russian Federation of 1994, any individual aged 18 or more has, as a rule, full legal capacity, which is defined as “the ability to acquire and enjoy civil rights, create and fulfil civil obligations by his own acts”. Under Article 22 of the Civil Code legal capacity can be limited, but only on the grounds defined by law and within a procedure prescribed by law.
48. Under Article 29 of the Civil Code, a person who cannot understand or control his or her actions as a result of a mental illness may be declared legally incapacitated by the courts and placed in the care of a guardian. All legal transactions on behalf of the incapacitated person are concluded by his guardian. The incapacitated person can be declared to have regained full capacity if the grounds on which he or she was declared incapacitated cease to exist.
49. Article 135 (1) of the Code of Civil Procedure of 2002 (“the CCP”) establishes that a civil claim lodged by a legally incapacitated person should be returned to him without examination.
50. Article 281 of the CCP establishes the procedure for declaring a person incapacitated. A request for incapacitation of a mentally ill person can be brought before a first-instance court by a family member of the person concerned. On receipt of the request, the judge must commission a forensic psychiatric examination of the person concerned.
51. Article 284 of the CCP provides that the incapacitation request should be examined in the presence of the person concerned, the claimant, a prosecutor and a representative of the guardianship office. The person whose legal capacity is being examined by the court is to be summoned to the court hearing, unless his state of health prohibits him from attending it.
52. Article 289 of the CCP provides that full legal capacity can be restored by the court at the request of the individual’s guardian, a close relative, the guardianship office or a psychiatric hospital, but not of the person declared incapacitated himself.
53. The Psychiatric Assistance Act of 2 July 1992, as amended (“the Act”), provides that any recourse to psychiatric assistance should be voluntary. However, a person declared fully incapacitated may be subjected to psychiatric treatment at the request or with the consent of his official guardian (section 4 of the Act).
54. Section 5 of the Act establishes that individuals suffering from mental disorders have all human rights and freedoms guaranteed by the Russian Constitution and federal laws. Limitations of their rights and freedoms are only allowed when specifically provided for by laws of the Russian Federation. Section 5 (3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely on the grounds of their diagnosis, or the fact that they have been subjected to treatment in a psychiatric hospital.
55. Under Section 5 of the Act, a patient in a psychiatric hospital can have a legal representative. However, pursuant to point 2 of Section 7, the interests of a person declared fully incapacitated are represented by his official guardian.
56. Section 34 regulates the procedure for involuntary placement of a mentally ill individual in a psychiatric hospital. A judge is to examine a request for involuntary admission to a psychiatrist hospital in the presence of an individual whose placement in the hospital is sought. Section 35 provides that only a judicial order may serve as grounds for admission of an individual to a psychiatric hospital. Such an order may be appealed against within ten days by the individual whose detention in a psychiatric hospital was authorised, his representative, the head of the psychiatric hospital or a prosecutor (Section 35 § 3 of the Act).
57. Section 37 (2) of the Act establishes the list of rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship. However, under Section 37 (3) the patient’s doctor may limit the patient’s rights to correspond with other persons, have telephone conversations and meet visitors.
58. Section 47 of the Act provides that the doctors’ actions can be appealed against before the courts.
59. On 27 February 2009 the Constitutional Court of the Russian Federation issued Decree no. 4-P, having declared unconstitutional a number of provisions of the Russian Code of Civil Procedure and the Psychiatric Assistance Act limiting rights of mentally ill persons to participate in incapacitation proceedings and to appeal against court decisions stripping them of legal capacity.
60. In Resolution no. 6 of 7 April 2011 the Plenary Supreme Court of the Russian Federation held that a person whose admission to a psychiatric hospital was authorised or whose detention in hospital was extended by a court has the right to appeal against that decision, along with his lawyer, legal guardian or other persons authorised to do it by the Russian Code of Criminal Procedure (§ 8). The Plenary Supreme Court also stressed that, unless the accused’s state of mental health precludes it, an individual against whom criminal proceedings are pending should have the opportunity to make use, personally, of every procedural right guaranteed by Articles 46 and 47 of the Code of Criminal Procedure (the right to be informed of the charges against him and to receive related procedural documents, the right to give explanations and make statements or to remain silent, the right to legal assistance, the right to submit evidence, the right to lodge requests, complaints, etc. and to participate in their examination by a court, the right to an interpreter, the right to appeal against actions/inaction on the part of the courts, prosecutors, investigators, etc., the right to attend hearings before the trial and appeal courts, as well as hearings concerning detention matters, and so on). The courts should take into account expert reports, medical and other evidence, including that provided by the psychiatric hospital, to determine whether the individual’s state of mental health permits him/her to fully benefit from his/her procedural rights (§ 10).
61. The Plenary Supreme Court insisted that it was the trial court’s task to duly and timeously inform the person of the date, time and place of any court hearing so as to provide him/her with an opportunity to submit various procedural requests, including that for his/her attendance (§ 13).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-4
6-1
6-3
VIOLATED_BULLETPOINTS: 5-1-e
6-3-c


ITEMID: 001-60720
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DEMIR v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1959 and lives in Vienna.
10. On 29 November 1992 the applicant was arrested on suspicion of attempted blackmail and unlawful possession of a firearm. Subsequently, he was taken into detention on remand. He was suspected of having tried to blackmail Turkish restaurant owners in that he together with several accomplices, all being members of a Kurdish association, came to their restaurants and threatened them in order to obtain money for this association. Further, the applicant was suspected of unlawful possession of a firearm, which had been found in a car he used to drive. In these and the following proceedings the applicant was represented by counsel. On 3 August 1993 the applicant was released.
11. On 31 March 1995 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), after its first judgment had been quashed on appeal, acquitted the applicant and his co-accused giving them the benefit of the doubt. The prosecution did not appeal against the acquittal. Therefore, in accordance with the relevant procedural provisions, it was not necessary to serve a written version of the judgment on the applicant, but it was sufficient to include its operative part without any reasons in the minutes of the hearing (so-called abridged version of minutes and judgment – Protokollsvermerk und gekürzte Urteilsausfertigung).
12. On 16 October 1995 the Vienna Regional Criminal Court, after a first decision on the applicant’s compensation claim for detention on remand under section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”) had been quashed on appeal, again dismissed the applicant’s compensation claim.
13. On 26 February 1996 the Vienna Court of Appeal (Oberlandes-gericht), upon the applicant’s appeal, quashed the Regional Court’s decision on the ground that it did not contain sufficient reasons. As to the applicant’s complaint that the decision violated the presumption of innocence it noted that the European Court of Human Rights in the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A) had not challenged the conformity with Article 6 § 2 of the Convention of section 2 (1)(b) of the 1969 Act. Following an acquittal it was still admissible to examine the question whether the suspicion had been dispelled as long as the assessment did not go beyond the reasons given for the acquittal. It, therefore, instructed the Regional Court to state the reasons for the acquittal of the applicant, which were not included in the abridged version of minutes and judgment of 31 March 1995.
14. Thereupon, the Regional Court supplemented the minutes accordingly, stating that the evidence before it did not carry a finding of guilt. As to the charge of attempted blackmail it noted that in the second set of proceedings the witnesses, namely the restaurant owners concerned, had given a weakened version of their previous statements. They said in particular that the applicant and his accomplices had not directly menaced them and that they had only been frightened as the applicant and his co-accused clearly asked for money and announced that they would return. Although the witnesses now tried to describe the incidents at issue as favourably to the accused as possible and although their statements were insufficient for a conviction, they had disproved the defence of the applicant who had claimed that he had only come to the respective restaurants to distribute posters without ever having requested donations. As to the second charge the court found that the evidentiary basis was sufficient to prove only that the applicant had access to the car in which the firearm had been found.
15. On 25 March 1996, the Vienna Regional Criminal Court again dismissed the applicant’s compensation claim under section 2 (1)(b) of the 1969 Act. Its main line of argument ran as follows:
“For his part, the applicant stated that he had not collected any donations at the material time. However, in the light of the witnesses’ testimony that point of his defence was revealed to be untrue. It follows that he lied in order to conceal something. Even if, in view of the very much weakened witness evidence, a conviction was no longer possible as the principle of the ‘benefit of the doubt’ had to be applied in the accused’s favour, it cannot be said that the suspicion attaching to the applicant and the other defendants acquitted with him was entirely dispelled in the second set of proceedings. As stated in the full reasoning of the decision [of 31 March 1995], the witnesses gave the impression that they now wished to exonerate the accused – particularly the applicant – but on the basis of their testimony the possibility that they felt threatened when the accused demanded money from them cannot be excluded.”
16. On 10 April 1996 the applicant appealed against this decision. He contested, in particular, that the suspicion against him had not been dissipated.
17. On 30 August 1996 the Vienna Court of Appeal, sitting in camera, as in all the previous proceedings, dismissed the applicant’s appeal. It found in essence that the Regional Court’s decision was duly based on the reasons given for the acquittal:
“As clearly emerges from the full reasoning of its judgment, the trial court acquitted the applicant solely because in the second set of proceedings the restaurant owners departed from their previous depositions, which had strongly incriminated him, in such a manner that the requisite standard of proof of guilt could not be met. However, in its reasoning, the trial court makes clear reference to a number of circumstances duly supported by the evidence in the case file – which meant that the suspicion attaching to the applicant had not been entirely dispelled. In particular the judge states that during the trial he formed the personal impression that, in view of the specific manner in which the applicant and his fellows had acted, the prosecution witnesses had good, objectively-founded reason to fear reprisals in the form of violent attacks if they did not make the donations demanded.”
18. This decision was served on the applicant’s counsel on 11 September 1996.
19. Following communication of the present application to the respondent Government, the Procurator General filed a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof).
20. On 7 June 2000 the Supreme Court found that the courts’ failure to hold a public hearing and to pronounce their decisions publicly violated section 6 §§ 3 and 4 of the 1969 Act taken in conjunction with Article 6 § 1 of the Convention. It, therefore, quashed the Vienna Regional Criminal Court’s decision of 25 March 1996 as well as the decision of 30 August 1996 by the Vienna Court of Appeal and remitted the case to the Regional Court.
21. On 31 July 2000 the Vienna Regional Criminal Court, after having held a public hearing, again dismissed the applicant’s compensation claim. At the close of the hearing the judge pronounced the decision orally. In the written version of the decision the court used exactly the same wording for a reasoning as it had already used in its previous decision of 25 March 1996 (see above).
22. On 15 September 2000 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal. It confirmed the Regional Court’s view that the suspicion against the applicant had not been dissipated, using the same reasoning as in it previous decision of 30 August 1996 (see above).
23. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows:
“(1) A right to compensation arises: ...
(b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...”
“(2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions for compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3. ...
(4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ...”
24. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself did not violate Article 6 § 2 of the Convention which, under Austrian law, had the force of constitutional law. In the light of the Sekanina v. Austria judgment (of 25 August 1993, Series A no. 266-A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1)(b) of the 1969 Act in order to clarify the law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-57453
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF B. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved
JUDGES: C. Russo;N. Valticos
TEXT: 8. The applicant, a British citizen born in 1957, lives in England. She was brought up by her father and attended a special school for the mentally abnormal until the age of 15. Her child P was born on 17 July 1977; she had a second child on 30 January 1979 and a third on 22 September 1983. She was divorced from the father of P on 26 May 1980.
9. Four days before the birth of P, a social worker’s case conference, at which the applicant was not present or represented, was held at the hospital to consider the expected child’s interests. The conference had been arranged because the Social Services Department of the local authority ("the Authority") was aware of marital difficulties between the applicant and her husband and of possible resultant accommodation problems and was concerned as to her capacity to look after the child. It was concluded that, although she would not deliberately neglect the baby, she might prove incapable of comprehending the baby’s needs in view of her own intelligence; intensive support from health visitors and Church welfare officers was proposed.
10. After the birth, the applicant and P returned to the matrimonial home. On 22 August 1977, a health visitor was called there after the applicant had suffered violence from her husband; she went, with P, to live with her father.
According to the Government, the applicant returned to the matrimonial home in October 1977 after a disagreement with her father but went back to his home on 18 November as her husband was co-habiting with another woman. The applicant denies that she left her father’s home during this period, but a social enquiry report prepared in connection with her wardship application (see paragraph 20 below) indicates that since she and P could not stay with the husband, who was living with another woman, a place was found for them at a mother and baby home.
On 20 November, the social workers concerned decided that the applicant might be able to cope with P if given continuous support by a responsible adult. Since the applicant’s relationship with her father appeared to be stabilising, the Social Services Department for the area where he lived agreed to take over supervision of the family. However, this support was not given as a result of the prolonged illness of the social worker responsible.
11. On 22 March 1978, the applicant returned briefly to her husband but in April she formed a relationship with A, with whom she lived for about six weeks. On 7 April, P suffered a non-accidental injury for which, four days later, the applicant admitted responsibility. On 8 May, she appeared before a magistrates’ court, pleaded guilty to a charge of assaulting the child and was placed on probation.
12. Following a report of the last-mentioned incident, the Authority sought and, on 11 April 1978, obtained a place of safety order (see paragraph 27 below) in respect of P. As a result of the order, the child was admitted to hospital, where the injuries were found to be minor. Three days later, following a social workers’ case conference, it was decided that since the applicant had no suitable accommodation P should be discharged from hospital to a foster family whose home was near that of the applicant’s father, thus permitting her easy and regular access to the child. The Authority envisaged a rapid restoration of P to the applicant’s care. Between 14 April and 26 June, during which time she changed addresses four times and led an unsettled lifestyle, the applicant paid ten visits to the child, but somewhat erratically and without keeping to various arranged appointments.
At a visit on 28 April, the applicant’s father was told by the social worker responsible of the circumstances leading to P’s placement with the foster parents. He indicated that he was not then prepared to have the applicant back and that he was satisfied that P, who was happy and well cared for, should remain with the foster parents. At that time, he considered that this was the best place for the child, with whom he would not be able to cope because of his job.
13. Until December 1978, P was subject to a series of interim care orders (see paragraph 33 below), obtained by the Authority on 8 May, 5 June, 3 July, 17 July, 14 August, 11 September, 12 October, 26 October and 23 November 1978.
Following a case conference held on 12 June 1978 and attended by the social workers responsible for P, it was decided that since the applicant’s lifestyle and limited contact with the child were impeding the initial plan for their immediate rehabilitation, P should be moved to long-term foster parents living less close to the applicant’s home. According to the social welfare report, "it was decided that, in [P’s] own interests the child’s whereabouts should not be so readily available to [the applicant], [since] she did not seem to be interested in [P] and [P’s] longer term welfare needs seemed most likely to be met by placement with long-term foster parents". Neither the applicant (whose whereabouts at the time were probably unknown to the Authority) nor her father was directly involved in the procedure in which this decision was taken and they were unaware that the case conference was being held. The move was effected on 26 June and the foster parents later applied to adopt P.
14. Some two weeks after the case conference the applicant’s father expressed the wish to care for P. After extensive efforts, he succeeded in finding the applicant in mid-July 1978. She moved back to live with him and he indicated his interest in P’s future and his preparedness to help the applicant to settle down. According to the social welfare report, "in order to promote possible future rehabilitation, arrangements were made for regular monthly meetings ... between [P] and [P’s] natural family". The first of such visits, between the applicant, her father and P, took place at a day nursery on 31 August 1978 and was followed by others on 18 October and 1 November. However, the visits ceased as a result of a strike by social workers from 3 November 1978 to 23 April 1979, which made visits at the nursery under the supervision of a professional social worker impossible. The Government maintain that the applicant had agreed in advance with the Authority that visits should be so supervised, but she denies this.
15. The Authority sought and, on 5 December 1978, obtained from the local juvenile court a care order (see paragraph 32 below) in respect of P. The applicant did not appeal against this decision (see paragraph 35 below). Since the above-mentioned strike was then in progress, it is uncertain how the Authority proposed that the order should be implemented, other than by merely leaving P with the foster parents. In view of the strike no access was possible for the applicant, but the juvenile court had in any event no jurisdiction to decide the question of access, which remained a matter within the discretion of the Authority (see paragraphs 48-49 below).
16. In January 1979, the applicant was diagnosed as suffering from schizophrenia and treated at a local hospital. She was discharged with her second child, who was born on 30 January, but continued to attend as an out-patient until March when she was considered to be no longer suffering from the illness.
After the end of the social workers’ strike on 23 April, the applicant requested daily access to P, but this was refused by the Authority as impractical and not in the child’s best interests. Following a case conference concerning P’s brother held on 17 May, it was agreed that representatives of the Authority should visit the applicant’s father’s home to assess the possibility of P returning to live there with the applicant. On 23 May, she and her father visited P. The Social Services Department had recommended that such visits should continue on a monthly basis and the second took place on 26 June; on that occasion the applicant’s father became aggressive and refused to permit the visit to his home envisaged at the May case conference.
Following a further case conference held on 6 July to review P’s progress since coming into care, it was decided that the child was doing well with foster parents and that it was impossible to consider any proposal for rehabilitation whilst the applicant’s father refused to allow the social workers to visit his home. The applicant was not informed in advance of this conference or offered the opportunity to attend it.
17. On 19 September 1979, the juvenile court rejected an application by the applicant for the care order to be discharged (see paragraph 34 below), but recommended an increase in the frequency of her visits to P. Following a case review on 5 October, at which the social workers responsible and P’s foster parents but not the applicant or her father were present, it was decided that the visits should henceforth be at three-weekly intervals; the applicant was neither informed in advance of the review nor offered the opportunity to attend it. The last of such visits took place on 30 April 1980.
18. On 2 May 1980, the social workers responsible held a statutory review of the case (see paragraph 46 below), which was also attended by professional agencies apart from the social services. The applicant and her father were not present or represented and there is nothing to suggest that they were aware of this meeting until after it took place. Without any prior consultation with the applicant, the meeting decided to terminate her access to P forthwith. According to a social-worker report of 21 November 1980, this decision was based upon the fact that prior to the social workers’ dispute there were only vestigial signs of a relationship between the applicant and P, which had not justified an intensive programme of rehabilitation, and that these signs had disappeared when visits resumed in May 1979. In addition, there was evidence of strong bonding between P and the long-term foster parents; they were strong parental figures and the applicant’s contact with P therefore caused the child confusion. The social enquiry report states:
"When access arrangements were made prior to the decision of 2 May 1980 P would arrive at the Day Nursery with his foster parents always looking paler than usual, and was quiet, and clinging to the foster mother on arrival. The foster parents would stay in the room until P settled, and occupied with a toy or game, then they would leave the room. [The applicant’s father] would leave the room for about half an hour so that P and [the applicant] could be observed together. The social worker usually would attempt to get P involved in some activity endeavouring to involve [the applicant], as she had difficulty in holding P’s attention. The social worker did on occasion leave the room so that P and [the applicant] could be alone but there was little or no evidence of a meaningful relationship developing. When [the applicant’s father] was in the room he did get a positive response from P. He was able to engage in play activities with P and during these periods P would come to life ... A health visitor from the local clinic would see P after each of these visits to see if [the child] was at all distressed by the occasions. It was noticed that P became very clinging to [the] foster mother on the day after each visit. P would wake up in the night after the visit. On the last occasion of access [the child] soiled [its] pants on the way home from the Day Nursery. This was the first time this had occurred for many months."
On 8 May 1980, the Authority wrote to the applicant informing her that future access to P would not be permitted, giving as the reason that P had been showing signs of disturbance following visits by her which had proved unsettling.
19. On 30 May 1980, the juvenile court rejected a further application by the applicant to discharge the care order. She lodged an appeal with the Crown Court but this was not ultimately pursued: counsel had advised that the Crown Court, like the juvenile court, had no jurisdiction over the question of access alone but could only consider the wider issue of whether the care order should be revoked (see paragraph 49 below).
20. Counsel advised that the proper course to have the access question examined was for the applicant to apply for P to be made a ward of court (see paragraphs 43-45 and 50 below), whereupon the High Court would make such order as it thought fit in P’s best interests. On 25 September 1980, the applicant accordingly issued an originating summons in the Family Division of the High Court, pending the hearing of which P became a ward of court. The summons was dismissed - and the wardship thus terminated - on 24 November, in the light of the decision in A v. Liverpool City Council, which had just been heard in the same Division of the High Court. The latter case was then pending in the House of Lords, which gave its decision therein on 20 May 1981 (see paragraph 50 below).
21. Following the last-mentioned decision, the applicant obtained, on 5 October 1981, a limited legal aid certificate to permit her to seek counsel’s opinion on the question whether or not there was a judicial remedy available to her to challenge the Authority’s decision to refuse her access to P. On 22 January 1982, counsel advised, after a review of the authorities, that, applying the criteria set out by Lord Greene in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (see paragraph 49 below), "the answer would be in favour of the Local Authority". Counsel stated that "[since that Authority had] decided that access was not in the interests of [P], no Court would say that they had come to a conclusion so unreasonable that no reasonable Authority could ever have come to it. In these circumstances in my view there is not a scintilla of hope that [the applicant] would succeed in obtaining a judicial review". As a result of this opinion, the applicant’s legal aid certificate was not extended.
22. In March 1982, P’s father consented, at the request of the long-term foster parents, to the child’s adoption by them.
The applicant refused to consent and the foster parents applied to the County Court for an order that the refusal be set aside as unreasonable (see paragraph 53 below). After hearing evidence, the judge found as a fact that the applicant had at all times made genuine efforts to re-establish her relationship with P; further, that when regular access to P was resumed in August 1978, the Authority and the applicant "understood and were agreed that rehabilitation between mother and child was to be pursued ... [the applicant being advised that] this rehabilitation was clearly bound to be a long and slow process". Whilst the judge accepted the possible correctness of the view of an educational psychiatrist witness that P’s welfare was best served by remaining with the prospective adopters, he held, on 12 July 1983, that the applicant’s refusal to consent was not unreasonable.
23. An appeal by the foster parents against this decision was heard on 12 October 1983. The Court of Appeal granted their request that the application to dispense with the applicant’s consent to adoption be re-heard: it considered that the County Court judge had given inadequate weight to the question whether P’s welfare did not dictate that a reasonable mother would conclude that adoption, and only adoption, would provide the child with the requisite security.
24. The matter was re-tried on 5 and 6 December 1983, when the judge dispensed with the applicant’s consent and granted an adoption order in respect of P. The judge approached the case from the point of view that if the applicant should have access to P, then no adoption order should be made; having reviewed the history of access, the judge concluded that no access should now be granted since it had not been enjoyed by the applicant for such a considerable period and the welfare of P was the first and paramount consideration. The 1978 care order in respect of P automatically terminated on his adoption.
25. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority.
Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.
The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.
By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for compulsory care and the wardship jurisdiction of the High Court which were directly relevant.
26. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders.
27. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger.
A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.
If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 43-45 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 28-30 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 33 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".
28. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court.
29. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented.
A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.
30. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 27 above).
31. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents.
32. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption.
33. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 27 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 32 above).
34. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act).
In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.
35. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords.
The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.
36. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.
37. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare.
38. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]).
Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 39 below) or apply to make the child a ward of court (see paragraphs 43-45 below).
39. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975).
Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.
40. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]).
41. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]).
The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).
42. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.
43. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court.
44. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority.
Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.
45. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings.
A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.
The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.
Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.
46. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]).
Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.
47. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority.
In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 49 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.
48. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court.
Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.
49. The statutory remedies described in paragraphs 34-35 and 40-42 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child.
A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:
(a) the authority acted illegally, ultra vires or in bad faith;
(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);
(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).
The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).
50. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 49 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court.
The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.
51. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point.
Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.
This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.
52. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access.
53. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3).
54. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.
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