ITEMID: 001-67175
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MORLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Patrick Morley, is a United Kingdom national, who was born in 1965 and is currently detained in HM Prison Full Sutton, York. He is represented before the Court by Mr S. Chahal of Bindman & Partners Solicitors, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 May 1989, the applicant was convicted, inter alia, of three counts of rape and sentenced to life imprisonment. His tariff, set at 10 years, expired in prison.
The applicant suffers from a personality disorder (“psychopathic disorder”) which constitutes a mental disorder for the purposes of section 1(1) of the Mental Health Act 1983 (the 1983 Act). In prison, he was assessed by a number of psychiatrists with a view to possible transfer to hospital under section 47 of the 1983 Act, which led to a formal recommendation for transfer.
On 17 January 2000, the applicant was transferred from HM Prison Full Sutton to Rampton Hospital by virtue of a restriction direction made by the Home Secretary under sections 47 and 49 of the 1983 Act. This was based on the recommendations of two registered medical practitioners that the applicant was suffering from a psychopathic disorder of a nature or degree that made it appropriate for him to be detained in hospital for treatment and that treatment was likely to alleviate or to prevent a deterioration of his condition. The transfer was for the purposes of assessment as to possible therapeutic treatment, as well as ongoing treatment, and it had been pointed out in a report by Dr Keitch dated 15 June 1998 that there could be no guarantees as to long-term admission and that should he prove “untreatable” he would be remitted to prison.
On 12 December 2001, a Mental Health Review Tribunal considering an application by the applicant who was raising, inter alia, concerns about his diagnosis ruled that he did not fulfil the criteria for discharge under section 73 of the 1983 Act and that he was properly detained in hospital. It noted, inter alia, that he had begun to engage in psychotherapeutic treatment including a sex offender treatment programme and that it was too early to tell whether and to what extent he would respond or benefit. The SOTP programme commenced on September 2001 and was expected to continue until July 2003.
In a report dated 12 January 2002, a consultant psychiatrist, Dr Brugha, commissioned by Rampton Hospital to provide a second opinion on the applicant found that his developmental disorder probably included the little understood pathological demand avoidance syndrome and stated:
“In conclusion I have little doubt that if Patrick returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him the risk of repetition of his former antisocial behaviours on returning to the community would be considerable. I am impressed by the level of understanding demonstrated in the psychological reports I have seen at Rampton Hospital and believe that a long-term programme of rehabilitation within secure NHS settings followed by a gradual, closely and skilfully supervised return to the community will significantly reduce the risk to the public in the longer term.”
On 5 September 2001, a new Resident Medical Officer (RMO), Dr Hayden, had assumed responsibility for the applicant's care. In the annual report which he issued on the applicant on 14 January 2002, Dr Hayden stated that the applicant caused difficulties in the ward, was controlling and demanding, was undermining the therapeutic regime and that at this point in time there was no conclusive indication that he had benefited from treatment. He nonetheless concluded that he remained appropriately detained in hospital under the classification of Psychopathic Disorder.
After, inter alia, an incident in which the applicant was the subject of an investigation into an alleged sexual assault on another patient, Dr Hayden came to the conclusion that the applicant was not benefiting from treatment at Rampton. A meeting was held concerning the applicant on 6 March 2002 with other members of hospital staff. Dr Hayden consulted both Dr Krishnan, clinical director of the hospital's personality disorder directorate, and Doctor Evershed, an acting consultant involved in treating the applicant. On 8 March 2002, Dr Hayden notified the Home Officer Mental Health Unit requesting that the applicant be transferred back to prison as soon as possible. He stated:
“Since moving to Evans Ward Mr Morley has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him. He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes. Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment and there is no evidence that change is imminent in this respect.
Mr Morley has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and RMO. Mr Morley has repeatedly attempted to dictate his own treatment needs. He has this month demanded that his Named Nurse be changed.
At present Mr Morley is ward-based as he is subject of investigation into an alleged sexual assault on a fellow patient.
Reasons for requesting urgent return to prison include recent behaviours of Mr Morley whereby hospital security has been compromised, a recent threat to a staff member in which Mr Morley threatened to put the staff member's head through a window and his general undermining effect on the therapeutic ethos of the ward...”
The same day, the Home Office issued the warrant under section 50 authorising the applicant's immediate transfer back to prison.
A number of further meetings were held within the hospital to discuss the applicant's position. On 18 March 2002 nine staff members were present at a multidisciplinary team meeting. At a meeting on 20 March 2002, the applicant was present and put forward his views that the Hospital had failed him and challenging the views expressed about his conduct and “treatability”. On 22 March 2002, the applicant was seen, at his request, by the Hospital Managers, who noted that there were “irreconciliable differences” between the applicant patient and the clinical team and that they were satisfied that the team had made a joint decision to return the applicant to prison and had consulted with previous members of the team.
It later transpired that the view that the applicant was no longer benefiting from treatment was not shared in all respects by all the clinical team. A post-discharge summary signed by Mr Jones, Consultant Forensic Psychologist, Dr Evershed, acting Consultant Psychologist, and four Trainee Groupwork Facilitators concluded:
“If Mr Morley had not left Rampton we would be recommending that he continue with the Core Programme here. We have some concerns about his ability to re-engage in the Prison Service Core Programme, having previously dropped out. We feel that he requires Sex Offender Interventions but alongside this he will require individual work to address responsivity issues ... The pattern of his alienating staff has occurred in the Prison Service and at Rampton Hospital. We feel that without this work to address responsivity, the same behaviours are likely to recur.”
In a report dated 27 March 2002, an individual therapist in dialectical behaviour therapy (“DBT”) stated that her impression of the applicant was that “He had consistently demonstrated motivation and commitment to engaging in DBT and had made an effort to communicate his experiences and how he perceives and interacts with the world around him.” On 28 March 2002, a trainee clinical psychologist supervised by Dr Evershed highlighted concerns about barriers to treatability but concluded that she and the applicant had “developed a firm and rewarding therapeutic relationship”.
On 26 March 2002, the applicant returned to HM Prison Full Sutton as a Category A prisoner. The same day the applicant lodged a claim for judicial review challenging the procedure whereby he was returned to prison. He obtained expert medical reports which gave the opinion that he should continue to be treated in hospital. In a report dated 4 April 2002, Dr Grubin, who had previously given a report to the MHRT, observed that having read the documentation he remained unclear as to why the applicant had been returned to prison and maintained his opinion that his condition was treatable and that it was more appropriate for him to be treated in hospital:
“I do not understand the rationale for prematurely curtailing Mr Morley's treatment in Rampton only for him to commence a similar programme in prison, but one in which the skills normally found in a hospital multidisciplinary team will be lacking. Similarly, it is simply not the case ... that sex offender treatment in prison is “exactly the same” as in Rampton; indeed this issue was discussed in some detail at the Tribunal hearing when the differences between the two were emphasised, particularly in relation to the greater ability of a hospital-based programme to tolerate offenders with severe personality disorder.
I am also concerned about Mr Morley's transfer because there is now a good deal of evidence to show that offenders who leave Sex Offender Treatment Programmes prematurely, for whatever reason, are at a higher risk of sexual re-offending ... The actions ... in returning Mr Morley to prison are therefore not simply neutral but may have a profound negative impact on his long-term risk.
... I note that since January an entirely new clinical team appears to have taken over Mr Morley's care. Given the complexity of this man's personality disorder, I think it unlikely that those involved will have had an opportunity to understand the case fully. My impression is that the decision to return Mr Morley to prison was an arbitrary one made by a locum RMO who knows little about the patient and was influenced by considerations unrelated to Mr Morley's treatment needs or longer term management.”
Permission was granted, with expedition, on 5 April 2002.
On 27 June 2002, Mr Justice Burton dismissed his claims. He found that section 50 did not require the hospital to carry out prior consultation with the patient concerned but that even if it did this was a case where no different result would have occurred even had there been consultation and the hospital had been entitled, rationally, to reach its decision as a matter of urgency. As regarded the Secretary of State, he considered that he was not bound by the MHRT's decision of 12 November 2001 that the applicant should be treated in hospital and that there had plainly been a change of circumstance since then including the incidents put in evidence by Dr Hayden and the change of clinical judgment of Dr Hayden and his team. The Secretary of State had therefore not acted irrationally or failed to take into account a consideration that he should have done. As regarded the Brugha report, this related to an assessment in the previous September and was not by a treating doctor and it was not necessary for the Secretary of State to take it into account. So far as the giving of reasons was concerned, he was satisfied that the reason given, namely that he was satisfied that no effective treatment for the disorder could be given in the hospital to which he had been removed, was sufficient and that that no further reasons were required. Insofar as the applicant complained of the failure to give him notice that it was intended to request his transfer back to prison, the judge noted, inter alia, that the RMO's evidence that notice was not given as the applicant's conduct, as well as being deceitful and manipulative, presented in some respects a real risk to hospital security.
The applicant's application for permission to appeal to the Court of Appeal was granted on 30 July 2002. After a hearing on 27 November 2002, his appeal was rejected.
As regarded the applicant's counsel's argument that there was a duty on the RMO to inform the Secretary of State as to the existence of other views on whether the applicant was benefiting from treatment, Lord Justice Pill stated:
“39. In the statutory context, I do not consider that Dr Hayden needed to disclose either the views of the psychologists or the report of Dr Brugha. The view of the psychologists now appears in the discharge reports prepared. Had the applicant not left the hospital, they would be recommending that he continue with the core programme at the hospital. Concern is expressed about his ability to re-engage in the prisoner service core programme ... The applicant's difficulties, including his pattern of alienating staff, are also mentioned. As RMO, Dr Hayden was required to take an overall view when applying the treatability test. It does not follow from progress in the introductory module of SOTP that the test is satisfied. If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by section 50 when deciding whether to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged. He was not in the circumstances under a duty to disclose reports on individual components of the applicant's medical regime or to present to the Secretary of State contrary views which may have been expressed by some members of the interdisciplinary team.
40. As to Dr Brugha's report, Dr Hayden acknowledges Dr Brugha's expertise and standing in the psychiatric world. Dr Hayden disagreed with his opinion and pointed out that he was not involved in the day to day care and clinical experience of the applicant ... The examination on which the report was based was conducted as long before the notification as 8 September 2001 and there were many subsequent developments as the evidence before this Court demonstrates. Dr Brugha recognised that it is 'perhaps not for me to speculate on treatment in this case'... In those circumstances, there was no duty on the RMO to send the report to the Secretary of State. Nor was the Secretary of State required to consider its contents. The responsibility for the clinical judgment is that of the RMO.
41. I do however express surprise and concern that the decision was taken with the speed it was though I do have regard to the need, for the reasons given by Dr Hayden, for urgency and for the decision not to tell the applicant of the notification until some time after it was made ... In my judgment there is a duty upon a RMO before giving a section 50(1) notification to make proper enquiries within the hospital as to whether the treatability test is satisfied and to consider views expressed, as well as his own first-hand knowledge and experience, before making a recommendation. The extent of the enquiry and of disclosure of information will depend on the circumstances of the particular case and will normally be judged as at the moment of decision. In my judgment, Dr Hayden did enough in the circumstances of this case to discharge that duty and did so before notification was given...
44. While I have accepted Mr Clayton's submission that the disputed documents need not have been disclosed to the Secretary of State, he puts it too high when submitting as a matter of principle there cannot be a general free standing duty on one public body to pass information to another public body. Under the statutory procedure, the Secretary of State can be expected to give considerable weight to the RMO's opinion and judgment. That involves a correlative duty upon the RMO, the content of which I have attempted to specify, to make full and fair enquiries at the hospital before making the clinical judgment and notification ...”
As regarded any alleged duty on the Secretary of State, Lord Justice Pill said:
“In the present statutory context, a right to make representations does not on the present facts arise. The issue is treatability and the Secretary of State's decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment is fairly and rationally made, a duty on the Secretary of State to permit and consider representations does not in my judgment arise ... There will be cases in which circumstances, including information available to the Secretary of State, either in the documents by which the notification is given or from other sources, create a duty in the Secretary of State to make further enquiries or take further action or both but that situation has not arisen in the present case ...”
Concerning the applicant's reliance on Article 8 of the Convention, he stated:
“49. I do not consider that there was a breach of Article 8 of the Convention. The applicant was serving a sentence of imprisonment for life. In the absence of a breach of another Article or Articles, the Convention does not render unlawful that interference with private life which inevitably follows from a lawfully imposed custodial sentence. Transfer from prison to hospital and hospital back to prison, as part of a high-security custodial regime, cannot in present circumstances be said to breach the Article notwithstanding the differences in medical treatment which occur. I do not of course exclude the possibility that certain aspects of a custodial regime might attract a case for breach but the decisions complained of do not fall within the concept of respect for private life in Article 8.”
His petition to the House of Lords for leave to appeal was dismissed on 17 February 2003.
Meanwhile, the applicant applied for discharge to a Discretionary Lifer Panel of the Parole Board. On 21 November 2002, the Panel heard evidence from two consultants that the applicant remained at risk of further re-offending, that that risk could only be addressed by suitable treatment and that he should not have been transferred back to prison because the required treatment for his mental disorder could only be provided in a special hospital. The Panel, rejecting his application for discharge, concluded:
“The panel was anxious that whereas both matters of security with their appropriate categorisation and consideration of any transfer to a Special Hospital must always remain a matter for others, the oral evidence provided at the hearing might form a basis for others to reach a prognosis which will give priority to the medical considerations raised and the reduction of risk so engendered.”
Section 47 of the Mental Health Act 1983 provides:
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered practitioners;
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which the person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that the person be removed to and detained in such hospital ...”
Section 50 of the 1983 Act provides:
“(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may–
(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed...”
Section 6 of the Act provides inter alia:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”


ITEMID: 001-57469
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1980
DOCNAME: CASE OF DEWEER v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Not necessary to examine art. 6-2 and 6-3;Not necessary to examine P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Gaukur Jörundsson
TEXT: 7. The applicant, a Belgian national, had been a retail butcher in Louvain since 1935. He died on 14 January 1978, but one month later his widow and three daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted.
8. On 18 September 1974, his shop, where he employed several persons, was the subject of a visit by Mr. Vanderleyden, an official in the Economic Inspectorate General. This official found an infringement of the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" ("the Decree of 9 August 1974"), in that Mr. Deweer had not reduced his prices of pork by 6.5 per cent as required by Article 2 par. 4 and his "retail margin" for that meat was 5.95 BF in excess of the maximum - 22 BF per kilogram - permitted under Article 3 par. 1 (see paragraph 18 below).
When questioned in this connection, the applicant made the following statement, according to the report drawn up the same day by the inspector (translation from the Dutch original):
"...
As is shown by the price-markings recorded by you, for beef I have applied the reduction provided for in the Ministerial Decree of 9 August 1974 and my margin is less than 22 F.
As concerns pig meat, I have not applied the reduction and my margin is in excess of 22 F.
This is because my calculations were for category 2 pig meat instead of category 1 pig meat. This was a mistake on my part. I acted in good faith and, in your presence, I immediately reduced the prices in order not to exceed the margin of 22 F."
He added the following note, signed, like the report, by Mr. Vanderleyden and himself:
"... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations:
(1) 1.50 F commission per live kg;
(2) transport costs of 100 F per animal, that is 1 F per kg;
(3) slaughter costs: 100 F per animal;
(4) slaughter tax: 105.20 per animal;
(5) transport costs for each carcase: 100 F per animal."
The inspector did not supply a copy of the report to Mr. Deweer. He set out the foregoing facts in a formal statement, known as a "pro-justitia", dated 18 September 1974; the Economic Inspectorate General transmitted this formal statement on 26 September to the procureur du Roi attached to the Louvain Court of First Instance.
9. On 30 September, the Louvain procureur du Roi ordered the provisional closure of the applicant’s shop within forty-eight hours from notification of the decision. The decision cited the gravity of the facts, whilst noting that there was no need to request a sentence of imprisonment; it referred to the interview report of 18 September and to sections 1 par. 1, 2, 5 to 7, 9 and 11 of the Economic Regulation and Prices Act of 22 January 1945 (see paragraphs 12 to 16 below). The closure was to come to an end either on the day after the payment of a sum of 10,000 BF by way of friendly settlement (minnelijke schikking) or, at the latest, on the date on which judgment was passed on the offence; Mr. Deweer had eight days in which to indicate whether he accepted the offer of settlement.
The same day the procureur du Roi wrote Mr. Deweer the following letter (translation from the Dutch original):
"...
You are hereby informed of the decision provisionally closing your business in pursuance of section 11 par. 2 of the Act of 22 January 1945. Your attention is particularly drawn to the heavy penalties imposed by the Act for failure to comply with this decision.
The amount of the friendly settlement proposed is fixed at 10,000 F.
I should be obliged if, within eight days, you would transfer this sum to Post Office Account no. ... and advise me whether you accept the offer of settlement.
The closure of your business will be terminated the day after you make the required payment.
..."
10. On 1 October, a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred. Mr. Deweer replied on 3 October by registered letter in the following terms (translation from the Dutch original):
"Dear Sir,
...
Kindly note that I am today paying the sum proposed in your letter of 30 September 1974 by way of friendly settlement; consequently, the criminal proceedings become barred once and for all (section 11 par. 1 of the Act of 22 January 1945) and the closure of my establishment will no longer be put into effect.
Kindly note, however, that I reserve all my rights to take action against the Belgian State before the civil courts, in particular for the restitution of this sum plus damages.
In point of fact:
- I have not as yet received any copy of the report which is the basis of the penalties imposed in my respect;
- as far as I can recollect, the findings of those drawing up the report did not take account of the factors which are essential for calculating the prices;
- an application for a declaration of annulment of the Decree of 9 August 1974 will be lodged before the Conseil d’État which has already annulled four similar Decrees (see the judgment of 5 July 1973);
- a closure can only come into effect forty-eight hours after notification of the conviction (section 11 par. 2 of the Act refers to section 9 par. 5 which speaks exclusively of convictions).
I have therefore paid the amount of the friendly settlement for the sole purpose of limiting the damage suffered by me; for the prejudice resulting from the closure of my establishment as from today until the eventual hearing of the case before the criminal court might be far in excess of 10,000 F and the civil court might then draw certain conclusions from the fact I had not mitigated my loss.
..."
11. Following this payment, which had in fact already been made on 2 October, the applicant did not have his shop closed. He did not bring any action before the civil courts for restitution of money paid over without cause and for damages; nor did he apply to the Conseil d’État for a declaration of annulment of the Decree of 9 August 1974.
12. At the relevant time, State intervention in the sphere of prices was governed in Belgium by the Economic Regulation and Prices Act ("the 1945/1971 Act"). This Act derived from the Legislative Decree of 22 January 1945 "on repression of offences against rules relating to the country’s supplies", as several times amended, in the last instance by an Act of 30 July 1971 which had modified the original title.
Section 2 par. 1, 2 and 4, read in conjunction with section 1 par. 1, empowered the Minister responsible for economic affairs to fix by Decree, for the whole or part of the territory of the Kingdom, price-ceilings to be respected in transactions of sale, offer for sale or purchase of products, materials, foodstuffs, goods or animals, as well as the maximum profit to be made by any vendor or intermediary.
The investigation and the finding of offences against the 1945/1971 Act were normally the responsibility of officials from the Economic Inspectorate General, acting on behalf of the Minister, and formed the subject of reports which were transmitted to the procureur du Roi; these reports were deemed to be conclusive until production of proof to the contrary (section 6).
13. In addition to imprisonment of one month to five years and a fine of 3,000 to 30,000,000 BF (section 9 par. 1), offenders were liable to various criminal and administrative sanctions (sections 2 par. 5, 3, 7, 9 par. 2 to 6, 10, 11 and 11 bis). One of the most serious of these sanctions was closure of the offender’s business, which took four forms:
(a) Under section 2 par. 5, the Minister could direct closure on a provisional basis, for five days at the most, in the event of refusal to comply with the instructions given by officials empowered by him; an appeal having suspensive effect was available to the person concerned before the judge in chambers at the Court of First Instance with jurisdiction in criminal matters.
(b) Section 3, second paragraph, allowed the Minister, even in the absence of any offence, also to close establishments whose activity he considered useless or harmful.
(c) Section 9 par. 5 enabled the courts to order closure for a period not exceeding five years, without prejudice to any penalty of imprisonment, fine or forfeiture (section 9 par. 1 to 4).
(d) In the instant case, the closure decision was taken by the procureur du Roi. It was based on section 11 par. 2 according to which:
"The procureur du Roi or, where preliminary investigations have been instituted, the investigating judge may order the provisional closure of the offender’s establishment. The closure may not continue beyond the date on which judgment is passed on the offence.
..."
The 1945/1971 Act did not provide for any appeal against such a decision to which, according to section 11 par. 2 in fine, section 9 par. 5 (b) applied. This latter section read as follows:
"The closure ... shall come into effect forty-eight hours after notification of the conviction. If the decision of closure is contravened, the procureur du Roi shall take all appropriate action in order to secure compliance therewith, in particular by affixing seals ..., and the offender shall be liable to imprisonment of six months to two years and to a fine"
which, in September 1974, was fixed at the amount of 3,000 to 3,000,000 BF.
14. Whereas the first three forms of closure had apparently not been used for fifteen years or so, the same was not true of the fourth form. Provisional closure of that type was ordered in the context of judicial proceedings already instituted or imminent and could thus precede a sentence of closure imposed by a court of law in pursuance of section 9 par. 5. However, according to decided case-law, provisional closure constituted an administrative measure differing in character from and incapable of being offset against any such sentence; it was not entered on the judicial records (casier judiciaire) or on the information extracts (bulletins de renseignements) and lists of convictions issued by the municipal authorities.
15. When he did not consider it necessary to seek a sentence of imprisonment and if proceedings for the offence had not yet been instituted before the trial court, the procureur du Roi could, under section 11 par. 1, inform the offender by registered letter that it was open to him to avoid prosecution by effecting one or more payments or services ("prestations"). The 1945/1971 Act listed five such payments or services from which the procureur du Roi made his choice. The first consisted of paying over a certain sum of money which might, if appropriate, be greater than the maximum fine fixed by the Act. The procureur du Roi called on the person concerned to advise him within a given period whether he accepted the settlement proposed; full and punctual performance of the settlement barred criminal proceedings.
Although often referred to as a fine by way of settlement, the payment thus made was not regarded in Belgian law as a penalty. Consequently, the payment could not be taken into consideration when dealing with further offences and was not entered on the judicial records. It was nevertheless notified to the municipal authorities of the person’s place of residence; until a period of five years had expired, mention of it was included in the information extracts the municipalities supplied to the judicial authorities but not in the lists of convictions intended for other authorities. In that respect, settlements negotiated in accordance with section 11 par. 1 of the 1945/1971 Act resembled those provided for under, inter alia, Articles 166 to 169 and 180 to 180 ter of the Code of Criminal Procedure.
With the possible exception of one or a few instances dating back to 1946, the closure orders issued by a procureur du Roi in pursuance of paragraph 2 of section 11 of the 1945/1971 Act were always accompanied by an offer of settlement made in accordance with paragraph 1. Such was the case in seven decisions - including the one affecting the applicant - taken in 1974 with regard to butchers in the district of Louvain. On the other hand, the converse situation - an offer of settlement without there being any closure order - was a frequent occurrence.
16. Again, under the terms of section 11 bis, a provision not applied in Mr. Deweer’s case, the officials specially empowered for these purposes by the Minister could, on finding an offence, fix a sum whose voluntary payment by the offender likewise barred criminal proceedings. In such cases, the settlement was not even entered on the information extracts issued by the municipal authorities.
17. Since the period under consideration, section 4 par. 4 of the 1945/1971 Act has been amended in one respect by section 24 of the Business Accounting and Annual Accounts Act of 17 July 1975, but each of the clauses quoted or summarised above, including in particular section 11, was left unchanged.
18. The offence established in the instant case by the Economic Inspectorate General related to the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" (see paragraph 8 above). This Decree, which was passed pursuant to the 1945/1971 Act, came into force on 14 August 1974; it was intended, like numerous other Decrees preceding it, to restrain rises in the cost of products constituting a major item in the consumer’s budget and in the computation of the official price-index.
Article 2 dealt with pig meat. Paragraph 1 of Article 2 required retailers in business before 1 November 1972 - such as the applicant - not to charge in excess of the prices prevailing during the first three weeks of October 1972 as increased by 10 per cent. Paragraph 4 specified that until 31 October 1974 the selling prices to the consumer, inclusive of value-added tax, charged in accordance with paragraph 1, had to be marked down by 15 per cent. The combined effect of these two paragraphs was to produce a price reduction of 6.5 per cent as compared with the levels current in October 1972.
Article 3, however, contained a proviso. Under paragraph 1 of Article 3, retailers able to show that they were not obtaining a retail margin of 22 BF per kilogram were, subject to not exceeding that margin, allowed to charge prices other than those following from Article 2. Paragraph 2 indicated what was to be understood by "retail margin", namely the difference between "the weighted average selling price not inclusive of value-added tax" and "the weighted average purchase price", these two prices being in their turn defined in paragraphs 3 and 4. Paragraph 2 did not include any provisions regarding those butchers - a minority of the order of 2 per cent - who, like Mr. Deweer, purchased their meat on the hoof.
Under Article 7, offences against the Decree of 9 August 1974 were to be investigated, established, prosecuted and punished in accordance with the provisions of Parts II and III of the 1945/1971 Act. Section II, which was applied in Mr. Deweer’s case, appeared in Part III of the latter Act.
19. The criminal prosecutions launched for failure to comply with the Decree of 9 August 1974 resulted, in numerous cases, in acquittals. For the most part, the relevant courts gave as the ground for their verdict the illegality of the Decree; in so doing they were acting in pursuance of Article 107 of the Constitution which states: "The courts and tribunals shall not apply any general, provincial or local decrees and regulations save insofar as they are in accordance with the law." In the early stages, the prosecuting authorities entered appeals which, however, failed; eventually they abandoned any attempt at appeal.
Certain courts adopted another solution: faced with the accused pleading the incompatibility of the Decree with Community law, they requested the Court of Justice of the European Communities to give a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Economic Community; for reasons that were the subject of dispute before the Commission, the Court of Justice did not have the occasion to deliver any ruling.
20. In a case brought before it on 14 October 1974 by a retail butcher and pork-butcher, the Conseil d’État declared the Decree of 9 August 1974 to be contrary to the principle of the equality of all Belgians before the law (Article 6 of the Constitution): the appreciable distinction drawn between retain according to the period of their establishment in business did not appear to the Conseil d’État to be justified either by any technical necessity or by imperative considerations of general economic interest. It accordingly annulled the Decree on 31 May 1978 (Ghekiere v. the State of Belgium).
Four earlier Decrees of a similar kind, dating back to 1970 and 1971, had suffered the same fate on 5 July 1973 (National Federation of Retail Butchers and Pork-Butchers of Belgium v. the State of Belgium).
21. After being amended on 7 October 1974, 29 October 1974, 13 November 1974 and 12 February 1975, the Decree of 9 August 1974 was repealed on 27 March 1975. The Decree which replaced it on the latter date, and which came into force on 11 April 1975, contained - as did the Decrees of 7 October and 13 November 1974 – specific clauses relating to retailers who purchased their meat on the hoof (Article 3 par. 4, last sub-paragraph). The Decree of March 1975 was the subject of a request for a preliminary ruling submitted by the Neufchâteau Court of First Instance; the Court of Justice of the European Communities gave its decision on the request on 29 June 1978 (Procureur du Roi v. P. Dechmann, case 154/77, European Court Reports 1978, pp. 1573-1595).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58266
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF MATTER v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 8
JUDGES: Christos Rozakis
TEXT: 5. The applicant is a Slovak citizen, born in 1925 and resident in Čadca.
6. In 1976 the applicant’s legal capacity was restricted. In 1983 the Čadca District Court (Okresný súd - “the District Court”) deprived the applicant of legal capacity entirely on the ground that he suffered from an explosive and vexatious form of paranoid psychosis. The District Court noted that the applicant had been undergoing out-patient psychiatric treatment for twenty years and that his personality had been deteriorating due to an increased syndrome of dementia.
7. On 18 February 1987 the District Court started, at the applicant’s request of 2 February 1987, proceedings pursuant to Section 81 (1) of the Code of Civil Procedure (see paragraph 41 below) with a view to determining whether the applicant’s legal capacity could be restored. The applicant refused to be examined by several experts and on 23 February 1989 the District Court decided that legal capacity could not be restored to him.
8. On 30 May 1990 the Supreme Court (Najvyšší súd) quashed the judgment on the ground that the District Court had not obtained an expert opinion as required by the law. The Supreme Court pointed out that the District Court had failed to avail itself of its rights under Section 52 of the Code of Civil Procedure and that it had disregarded, inter alia, Sections 6, 127 (1) and 187 (1) of the Code of Civil Procedure in conjunction with Section 10 (1) of the Civil Code. It ordered the District Court to examine the case again on the basis of a relevant expert opinion. The District Court appointed an expert on 26 June 1990.
9. As the applicant refused to be examined as an out-patient, the expert informed the District Court that an objective assessment of the applicant’s health required an in-patient examination.
10. On 1 April 1992 the District Court ordered that the applicant should be examined in a mental hospital pursuant to Section 187 (3) of the Code of Civil Procedure and appointed a new expert. The latter was asked to submit an opinion as to whether the applicant’s health had changed to such an extent that legal capacity could be restored to him.
11. On 13 May 1992 the District Court invited the applicant to come to the mental hospital in Sučany on 21 May 1992. The applicant was warned that he could be brought there pursuant to Section 52 (1) of the Code of Civil Procedure if he failed to comply. The applicant did not come to the hospital.
12. On 16 May 1992 the applicant lodged an appeal against the District Court’s decision of 1 April 1992.
13. On 17 July 1992 the Banská Bystrica Regional Court (Krajský súd - “the Regional Court”) informed the District Court that the aforesaid decision was premature as it was first necessary to appoint a guardian to represent the applicant.
14. On 9 September 1992 the District Court appointed the Čadca District Office (Obvodný úrad) as the applicant’s guardian. The applicant’s appeal against this decision was dismissed by the Regional Court on 28 December 1992 on the ground that he lacked capacity to lodge it.
15. On 28 September 1992 the Čadca District Prosecutor joined the applicant in the proceedings concerning the latter’s legal capacity.
16. On 20 October 1992 a representative of the authority appointed as the applicant’s guardian and the public prosecutor informed the District Court that they agreed with the applicant’s examination in a hospital.
17. On 30 November 1992 the Regional Court dismissed the applicant’s appeal against the District Court’s decision of 1 April 1992 as the applicant lacked standing to lodge it. The Regional Court held that an examination in a hospital was necessary within the meaning of Section 187 (3) of the Code of Civil Procedure as the applicant had refused to be examined by an expert.
18. On 19 April 1993 the Čadca District Office informed the District Court that it agreed to legal capacity being restored to the applicant.
19. On 3 May 1993 the District Court invited the applicant to come to the mental hospital in Sučany on 12 May 1993. The applicant was informed that he could be brought to the hospital if he failed to appear. The applicant did not comply with the court’s request.
20. On 19 August 1993 two policemen brought the applicant to the hospital in Sučany under an order by the president of the District Court. After a short period the applicant started co-operating with the expert. The examination was completed and the applicant was released from the hospital on 2 September 1993.
21. In his opinion submitted on 29 October 1993 the expert noted that the applicant, who had undergone a brain operation in 1984 and had had several heart attacks, suffered from a vexatious form of paranoid psychosis, from an organic psychosyndrome and from a heart disease. The expert concluded that legal capacity could partially be restored to the applicant and recommended a re-examination after two or three years.
22. On 23 November 1993 the District Court, following the expert’s opinion, restricted the applicant’s legal capacity in that he was not entitled to act before public authorities on his own, to conclude contracts, to assume obligations in writing and to work regularly.
23. In his appeal of 9 March 1994 the applicant requested that legal capacity should be restored to him entirely. He supplemented his appeal on 12 March, 28 April, 4 and 6 May as well as on 6 and 7 June 1994. He also requested that his case should be dealt with by another court.
24. On 30 August 1994 the Supreme Court dismissed the applicant’s request to have his case transferred to another court. The Supreme Court returned the file to the Regional Court and ordered it to establish whether the applicant challenged the Regional Court judges.
25. On 28 September 1994 the Regional Court transmitted the Supreme Court’s enquiry to the District Court which communicated it to the Čadca District Office. On 27 October 1994 the latter informed the District Court that it was not in a position to provide an answer. On 7 November 1994 the Regional Court asked the District Court for a reply. On 8 December 1994 the Regional Court addressed the request directly to the District Office.
26. On 9 February 1995 the Regional Court sent the file to the Supreme Court with the explanation that it had not been possible to obtain the requested information. The Regional Court expressed the view that the applicant had challenged all its judges.
27. On 6 March 1995 the Supreme Court decided that the Regional Court’s judges were not excluded.
28. On 29 May 1995 the Ministry of Justice requested the District Court to submit the case-file to it.
29. On 30 October 1995 the Regional Court quashed the first instance judgment of 23 November 1993 on the ground that the District Court had failed to comply with the obligation to hear the expert as required by Section 187 (3) of the Code of Civil Procedure. In view of the time which had elapsed after the delivery of the first instance judgment, the Regional Court considered it necessary to update the expert opinion.
30. On 5 February 1996 the District Court decided to obtain a second expert opinion on the applicant’s mental health and adjourned the proceedings.
31. On 31 October 1996 the District Court requested the Ministry of Health to indicate a medical authority which could prepare a second expert opinion. On 18 November 1996 the Ministry suggested that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava.
32. On 22 November 1996 the head of the Čadca District Office asked the District Court to discharge the District Office of the applicant’s guardianship. On 7 January 1997 the District Office proposed that Mr J. Jašurek, a lawyer practising in Čadca, be appointed guardian instead. In a letter dated 31 January 1997 the lawyer accepted the proposal.
33. On 25 March 1997 the Regional Court requested the District Court, in the context of different proceedings, to submit the file concerning the guardianship of the applicant to it. The Regional Court reiterated its request on 30 June 1997.
34. On 21 October 1997 the District Court ordered that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava.
35. On 22 October 1997 the District Court appointed Mr Jašurek as the applicant’s guardian.
36. On 3 November 1997 the applicant informed the head of the psychiatric clinic of the University Hospital in Bratislava that he disagreed with an examination.
37. On 16 October 1998 the District Court stayed the proceedings until the applicant’s health permitted his examination in Bratislava.
38. In a report of 21 January 1999 the doctor treating the applicant stated that the applicant was immobile and that he was not able to undergo an examination of his mental health in Bratislava.
39. On 30 April 1999 the District Court discharged Mr Jašurek, at his own request, of his duties as the applicant’s guardian. It appointed the Čadca County Office (Okresný úrad) as the guardian.
40. Section 10 of the Civil Code, so far as relevant, reads as follows:
“1. An individual who, because of a lasting mental disorder, is entirely incapable of carrying out legal acts shall be deprived of legal capacity by a court.
2. A court shall restrict the legal capacity of an individual who, because of a lasting mental disorder ..., is not capable of carrying out certain legal acts. The extent of the restriction shall be specified in the court’s decision.
3. A court shall modify or quash the decision on deprivation or restriction of legal capacity when the reasons on which it was based no longer exist.”
41. The relevant provisions are as follows:
“A court shall proceed with a case in co-operation with the parties so that a speedy and effective protection of rights be ensured and that the facts in dispute be reliably established.”
“1. When a person summoned to an examination or before an expert fails to appear without an excuse, the president of the court’s chamber can order to bring him or her there subject to prior notice.”
Section 81 (1) provides that in cases concerning, inter alia, a person’s legal capacity courts may start proceedings ex officio even if no formal action was brought.
Under Section 127 (1) a court shall, inter alia, appoint an expert after having heard the parties when the decision depends on an assessment of facts requiring special knowledge.
Pursuant to Section 187 (1), in proceedings concerning a person’s legal capacity, a guardian is to be appointed to the person concerned by the president of the court’s chamber. In such proceedings a court shall always hear an expert. Upon the latter’s proposal a court can order an examination of the person concerned in a hospital for no longer than three months if it is considered necessary for the determination of his or her state of health (Section 187 (3)).
42. When a court examines the question whether legal capacity can be restored to a person, it is not bound by the parties’ submissions. It may quash the original decision on deprivation or restriction of legal capacity. The court may also restrict a person’s legal capacity to such an extent as it deems it necessary even if it was not requested in the action or, as the case may be, in the initiative upon which it started the proceedings (Collection of judicial decisions and opinions, No. R 2/1984).
43. Courts should apply measures provided for, inter alia, in Section 52 of the Code of Civil Procedure rather than discontinue the proceedings when a participant remains inactive (Collection of judicial decisions and opinions, No. R 13/1977).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-86863
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GALLIANI v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;No violation of Art. 5-2;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1952 and lives in Savona, Italy.
5. On 19 January 1998 the applicant entered Romania with a tourist visa valid until 2 February 1998 and started business activities. In February 1998, when the applicant requested extension of the visa, the authorities asked for proof of residence in Romania that she could not provide.
6. In February-March 1999 the authorities refused the applicant’s request for extension of her visa as out of time. They told her that she needed to “know people” who could help her receive a new visa.
7. On 29 April 2000 the applicant was questioned by two officers from the Bucharest police to whom she claims she gave a bribe of 100,000 Old Romanian Lei (ROL) to let her go.
8. On 4 May 2000 at 8.30 a.m. the applicant was again stopped by officers from the Bucharest police when she was on her way to the Italian consulate. The officers took her identity papers and verified her data. After a one-hour wait the applicant was taken to Police Precinct no. 19 for additional checks.
9. From Precinct no. 19 she was taken by three officers to the Passport Bureau, where she explained that her visa had not been extended before its expiry because she had not had a valid residential tenancy contract. The person in charge asked her to return the next day to have her situation regularised.
10. The applicant was made to wait in the police car with one of the officers while the other two officers checked her passport. After the check they returned to Precinct no. 19, where after a one-hour wait the applicant was taken to the basement and body-searched by a female police officer while her bag was searched by another officer. She was informed that that was the standard procedure for any person who entered the police headquarters.
11. After the search, the applicant was questioned by two officers from the Passport Bureau and then taken again to their headquarters. Her fingerprints and photograph were taken and she was put in a room where the commander of Precinct no. 19 was writing on a paper that he was hiding from the applicant with his hands.
12. The commander informed the applicant, who requested an explanation, that she was not allowed to ask questions, to read or to know anything, and that she had to sit in a corner and wait. He then told her to stop crying, because the treatment she was subjected to was not even comparable to that inflicted on Romanians arrested by the Italian police.
The applicant replied that, unlike the great majority of Romanians in Italy, she had come to invest money in Romania and not to steal or commit crimes. She also said that the Italian police respected procedures, human rights and in particular the presumption of innocence, which was not the case in Romania, where foreigners were badly treated.
13. The applicant’s bag was searched again by another officer who entered the room. He took ROL 750,000 from her purse, the cost of a visa stamp that was applied on the applicant’s passport valid from 5 to 12 May 2000. He made an inventory of the bag and reported that the applicant had a mobile phone and ROL 2,250,000.
14. At around 4.30 p.m. the same day the applicant was taken for questioning to a different passport bureau. After a one-hour wait in the police car outside the building, she was informed that the questioning could not take place as the person in charge was absent, but that she would be taken to a hotel in Otopeni for the night.
15. Instead of being taken to a hotel as informed the applicant was placed in police custody. Her fingerprints were taken again and her money confiscated by the police officers, except for ROL 500,000 that she was allowed to keep for personal expenses.
16. The wardens informed her that she was to be repatriated the next day because she did not have a valid residence permit, but that since she had not committed any crimes in Romania she was free to return immediately.
17. On 5 May 2000 at 12 midday the applicant called the Italian consulate in Bucharest to ask the reasons for her arrest. The consulate was not aware of her situation. Later that day someone from the consulate staff informed the applicant that she was going to be repatriated to Italy on 7 May by the 9.10 a.m. Tarom flight but that they still did not know the reason for her arrest.
18. On 7 May 2000 the applicant was taken by a police officer to the airport where she was taken on to the flight by a Romanian intelligence officer who accompanied her throughout her journey to Italy. Asked by the applicant about the reasons for her repatriation, the officer told her that if she had not committed a crime it must be because of a quarrel with the police. He confirmed that the incident with the commander of the passport police team could have been the real reason for her repatriation. He also informed the applicant that she was under a prohibition on returning to Romania for two years.
19. In Rome the applicant was taken to the Italian police, who were not aware of her arrival. The police returned her passport and released her.
20. On 16 May 2000 the applicant’s husband, who was living in Romania in the same situation as the applicant, returned to Italy of his own free will.
21. The applicant’s residence permit was granted for the periods 29 April-29 October 1993 and 2 August 1997-2 February 1998.
22. According to the official records, the applicant was not arrested or remanded in police custody between 4 and 7 May 2000.
23. On 4 May 2000 the applicant was stopped by officers from Police Precinct no. 19 and taken to the Office for Foreigners in the Ministry of Interior, which was aware of the applicant’s irregular situation.
24. The Office for Foreigners filled in a standard form on the applicant’s situation under Law no. 25/1969. It recorded therein the dates of validity of her visa, the fact that she had been unlawfully resident for two years and three months and that she could not give reasons for her situation. It also noted that she was not married to a Romanian national nor did she have children of Romanian nationality and that she owned a company in Romania which had ceased trading. The Office for Foreigners recorded on the standard form that the applicant was not under criminal investigation in Romania, that no expulsion order had been made against her and that she had not asked for asylum. It also noted that the applicant had ROL 2,250,000 at her disposal. For these reasons, the Office decided that the applicant should be placed in the Otopeni Centre for Reception, Selection and Accommodation for Foreigners (“the Otopeni Centre”) with a view to her repatriation on the next flight to Rome. It ordered the purchase of a ticket to that end, at the authorities’ expense, and issued a prohibition on the applicant entering Romania for two years. It stamped on the applicant’s passport an exit visa valid from 5 to 12 May 2000.
25. She arrived at the Otopeni Centre on 4 May 2000 at 5 p.m. On arrival she was body-searched and the record indicated that she had ROL 1,160,000 at her disposal.
26. On 7 May 2000 the applicant was repatriated. An employee from the Airport Security Service accompanied her throughout her journey. This measure was taken in order to ensure security on the flight, given the applicant’s aggressive behaviour and her continual refusals to embark on the aeroplane.
27. On 8 June 2000 the applicant sent a letter to the Chamber of Deputies of the Romanian Parliament protesting against her repatriation. The letter was transmitted to the Border Police Department which informed the Chamber of Deputies of the irregularity of the applicant’s stay in Romania and the decision to repatriate her and the prohibition on her entering Romania for two years under Law no. 25/1969.
28. On 21 August 2000 the applicant sent a similar letter to the border police.
29. On 10 December 2001 the Romanian embassy in Rome, answering a letter sent by the applicant, congratulated her on her good command of the Romanian language, expressed regret for her distress, informed her that the prohibition had been lifted and advised her to contact the Italian embassy in Bucharest to assist her with the formalities in Romania.
30. The relevant provisions of Law no. 29/1990 on administrative litigation at the date of the facts are described in Sabin Popescu v. Romania, no. 48102/99, § 46, 2 March 2004.
31. Law 25/1969 on the status of foreigners provides as follows:
“(1) A foreigner who resides temporarily in Romania has the obligation to leave the country when the residence permit expires.
(2) The residence permit can be extended by the Ministry of Interior. A request for extension shall be made at least 24 hours before the expiry of the permit...”
“The Minister of Interior may cancel or limit the right to reside in Romania to a foreigner who has breached Romanian law...”
“(1) A foreigner temporarily residing in Romania whose right of residence has been cancelled shall leave the country within 48 hours of the time when the interdiction is communicated to him...
(3) If he does not comply with the obligation above, he may be expelled by order of the Minister of Interior.”
32. The legislation has changed several times since 2001. Nowadays, under Emergency Ordinance no. 194/2002 as amended by Law no. 56/2007 and Emergency Ordinance no. 55/2007, a decision to expel a foreigner drafted in Romanian and in an international language is served on the person concerned, who may appeal against it before the court of appeal; the expulsion is suspended during the proceedings (see Hussain v. Romania, no. 12338/02, §§ 51-55, 14 February 2008).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-109219
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF G. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-c - Defence in person);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
JUDGES: Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1974. He is at present being held at the Edouard Toulouse Hospital in Marseilles.
6. The applicant suffers from behavioural disorders and was alternately kept in prison and hospital psychiatric wards between 1996 and 2004. He suffers from chronic schizophrenic psychosis, with hallucinations, delusions and aggressive and addictive behaviour.
7. On 21 May 2005 the applicant was sent to Toulon-La Farlède prison after causing damage in Chalucet psychiatric hospital, where he had asked to be admitted. As a result, on 30 June 2005 he was sentenced to twelve months' imprisonment, of which ten months were suspended. On his arrival at the prison he allegedly set fire to his mattress. He was placed under psychiatric observation, then made to share a cell with another detainee, who was known to have psychiatric problems.
8. On 16 August 2005 a fire broke out in the applicant's cell. Both detainees suffered serious injuries. With burns on 65% of his body, the applicant's cell mate died from his injuries on 6 December the same year.
9. At a hearing on 9 September 2005 the applicant stated that he “could not remember exactly how his mattress caught fire”, and that he “suffered from schizophrenia, heard voices and saw strange things”, but that “everything was better at the moment”; he added “I feel freer since the fire in my cell... everything has become clearer in my head. I can say that everything is calm now”.
10. On 17 October 2005 the applicant was placed under judicial investigation for arson resulting in total unfitness for work for more than eight days, and placed in detention pending trial. He denied the charge, claiming that he had no recollection of the events leading up to the fire because he had been on medication at the time. On 7 December 2005 the public prosecutor's office made an application for the additional charge of arson aggravated by constructive manslaughter to be preferred against the applicant.
11. On 30 January 2006, in execution of an order of the investigating judge of 28 December 2005, Dr F., an expert at the Aix-en-Provence Court of Appeal, carried out a psychological examination of the applicant in the psychiatric unit at Les Baumettes prison in Marseilles, where he had been held since December 2005. The relevant passages from the report submitted on 1 March 2006 read as follows:
“The onset of the disorder at the age of about 22 ... heralded in a process of gradual marginalisation for this young adult during which he alternated periods of hospital treatment, voluntary or otherwise, incarceration, training courses and homelessness.
He has lived in this way for the last ten years, caught up in his illness, with no place in society ...
From the legal standpoint, his convictions bear witness to bouts of violence and excessive drinking, which he says had stopped prior to his incarceration ...
During the examination, Mr G. came across as a man with a schizoid personality, an introvert with no interest in the outside world, save for a few recurring scenes in which he sees himself as a victim.
Be that as it may, and whatever part he may have played in the case, Mr G. needs regular, long-term psychiatric support. While he is in prison, therefore, it is preferable that he be held in a medical unit, as he was when we met him.”
12. Two subsequent psychiatric examinations carried out respectively on 21 February by Professor A. and on 6 June 2006 by Dr G. confirmed the existence of chronic hebephrenic schizophrenia manifested in behavioural disorders and aggressive and addictive conduct. The first expert concluded that the offences in issue were related to the psychiatric disorders and that the applicant's judgment had been disturbed at the time, and that “the subject appears difficult to cure or rehabilitate, and requires neuroleptic treatment in strong doses combined with regular supervision or even placement in a UMD” (a difficult patients' unit: UMDs are psychiatric hospital wards specialised in the treatment of dangerous mental disorders, including patients committed under Article D. 398 of the Code of Criminal Procedure, or “CCrP”, see paragraph 35 below). The second expert found that it was not possible to say for sure that the applicant's behaviour was the result of his mental illness, and that there was no way of telling whether, at the material time, he had been suffering from a psychological or neuropsychological disorder which destroyed, affected, or diminished his discernment or his ability to control his actions within the meaning of Article 122-1 of the Criminal Code, and that he would require specialised care even after his release.
13. On 14 June 2006 the applicant's lawyer wrote to the investigating judge requesting his client's release. He argued that the applicant was known to suffer from psychiatric disorders, even prior to his incarceration, and could not be held criminally responsible. He went on to say “it is therefore difficult to see what purpose his incarceration might serve in that regard, especially as the offence with which he is charged occurred in prison. It appears, therefore, that prison is not the right place for my client. His place is clearly in a hospital environment. I believe it is the duty of the prosecuting authorities and possibly the prefecture to assume their responsibilities in this regard in the event of his release ...”.
14. By an order of 27 June 2006, the request for the applicant's release was rejected because according to Dr G.'s report a criminal penalty would not be inappropriate in the applicant's case, and pre-trial detention was the only means of preventing pressure being put on the witnesses, ensuring that the accused remained at the disposal of the judicial authorities and putting an end to the disturbance to public order.
15. On 7 August 2006 Dr G. examined the applicant again, “to determine whether his alleged losses of memory were real or invented and, if they were real, to determine the possible cause or causes (regard being had to the treatment he was following, for example). He submitted his report on 25 August 2006. In it he concluded that it was not possible to say for certain whether the alleged memory losses were real or invented, but they were definitely not caused by the mental disorder he had long been suffering from; they might, on the other hand, be related to (sedative) side effects of the psychotropic drugs used to treat him.
16. The applicant's lawyer asked for a second opinion, but his request was rejected by an order of 17 October 2006.
17. On 19 February 2007 an order was issued for the applicant's indictment and committal for trial before the Assize Court. On 1 March 2007 he appealed. His lawyer argued that at the time of the events that had led to his incarceration the applicant had been confined to a psychiatric institution; on arriving there he had tried to commit suicide by fire, and yet the prison authorities had taken no steps to ensure his safety and that of his fellow detainees. He maintained that his client was not criminally responsible and requested his release, whereupon the prosecuting authorities would be able to request his administrative detention. On 19 March 2007 the principal public prosecutor at the Aix-en-Provence Court of Appeal requested confirmation of the applicant's indictment and committal for trial before the Assize Court.
18. The applicant was placed in the regional psychiatric unit (RPU) at Les Baumettes prison from 30 April to 12 June 2007, from 15 June to 10 August 2007, from 31 August to 15 November 2007, and from 26 November 2007 to 14 March 2008. From 10 au 31 August 2007, when going through a period of anxiety scarcely compatible with detention in the RPU, the applicant was once again placed by the authorities in a specialised hospital under Article D. 398 of the CCrP.
19. In the interim, on 12 October 2007 an expert report by Dr G. found that the applicant had indeed been suffering from psychological or neuropsychological disorders at the material time, although it was not certain whether this had “destroyed, affected, or diminished his discernment or his ability to control his actions within the meaning of Article 122-1 of the Criminal Code”.
20. By a judgment of 17 December 2007 the Aix-en-Provence Court of Appeal gave a prison warder a two-month' suspended prison sentence for having inflicted violence on the applicant that resulted in one day's total unfitness for work. The warder had slapped him for refusing to be placed in a cell in which a detainee had started a fire and which he would have to share with a detainee with suicidal tendencies.
21. By a judgment of 22 January 2008 the investigation chamber of the Aix-en-Provence Court of Appeal upheld the order for the applicant's indictment and committal for trial before the Assize Court.
22. The applicant was compulsorily admitted to hospital from 14 to 31 March 2008, from 8 to 28 July 2008 and from 27 August to 28 October 2008. He was placed in the regional psychiatric unit at Marseilles-Baumettes prison from 31 March to 8 July 2008, from 28 July to 27 August 2008 and from 28 October to 31 December 2008.
...
23. By a judgment of 13 November 2008 the Var Assize Court sentenced the applicant to ten years' imprisonment and declared him civilly liable for the prejudice suffered by the civil parties. The applicant and the prosecution appealed against that judgment, on 21 and 24 November 2008 respectively. After the sentence was pronounced the applicant was taken back to the RPU at Les Baumettes prison.
24. On 31 December 2008 the prefect ordered the applicant's compulsory hospitalisation in Edouard Toulouse Hospital. On 28 January 2009 his detention there was extended for three months, until 30 April 2009, for the raisons stated in a medical certificate of 27 January 2009 mentioning that the applicant “has displayed increased anxiety in the last few days, and his old delusions (of grandeur and of being a father) have resurfaced”. It appears from the file that the applicant was again placed in the prison psychiatric unit from 17 to 27 March 2009 and from 1 April to 15 May 2009.
25. On 25 March 2009, while in the prison hospital, the applicant applied to be released, relying on Article 3 of the Convention. He argued that his constant moves back and forth between prison and hospital amounted to inhuman and degrading treatment. He explained that when his condition deteriorated to the point where it was no longer compatible with detention, he was placed in hospital, and when he recovered his “stability” he was sent back to prison until his condition deteriorated again. He considered that his return to prison constituted a form of torture. Lastly, he argued that the decision to put him back in normal detention at Les Baumettes was absurd considering his extreme vulnerability vis-à-vis the other detainees and the danger to his safety. By a judgment of 14 May 2009 the investigation chamber of the Aix-en-Provence Court of Appeal rejected his request:
“There is no medical evidence that G.'s state of health is currently incompatible with detention, considering that his compulsory hospitalisation in an approved establishment on several occasions since he was placed in detention, followed by his return to prison, were strictly based on his health needs, in conformity with the provisions of Article D 398 of the Code of Criminal Procedure, and did therefore not amount to inhuman or degrading treatment, and certainly not to torture as alleged;
It should also be noted that the charges against G. concern criminal acts that caused an exceptional, persistent disturbance to public order that his release would be likely to rekindle, namely the destruction by fire of a prison cell resulting in the death of a fellow prisoner;
Regard being had to the length of the sentence incurred, the guarantees that the accused will appear in court are uncertain in so far as he has no fixed abode and no job and is a repeat offender, having already been convicted of arson;
In addition, his release would probably disrupt the normal course of the proceedings and the establishment of the truth, bearing in mind the oral nature of the proceedings, and the execution of the sentence in the event of a conviction;
Detention is therefore necessary before the hearing as a precaution, the obligations under judicial supervision, however strict they may be, being insufficient with regard to the aims pursued.”
26. From 15 to 29 May 2009 the applicant was again committed to hospital under Article D. 398 of the CCrP.
...
27. By a judgment of 22 September 2009 the Bouches-du-Rhône Assize Court ruled, on appeal, that the applicant lacked criminal responsibility:
“It has been found by a majority of at least ten votes that [the applicant] ... intentionally destroyed a prison cell ... and in so doing caused the death of a fellow prisoner;
It has further been found by a majority of votes that [the applicant's] criminal responsibility at the time was diminished within the meaning of Article L 122-1 of the Criminal Code.”
The Assize Court ordered the applicant's compulsory admission to hospital under Article 706-135 of the CCrP (see paragraph 34 below), as he “suffer[ed] from a psychiatric disorder that require[d] treatment and [could] jeopardise the safety of others, in particular on account of the unpredictability of his actions linked to his serious mental illness”.
28. Article 122-1 of the Criminal Code reads as follows:
“A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions.
A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions, remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime.”
29. The relevant provisions of the Code of Criminal Procedure subsequent to the Law of 25 February 2008 on preventive detention and diminished responsibility because of mental illness read as follows:
...
“Without prejudice to the application of Articles L. 3213-1 and L. 3213-7 of the Public Health Code, when an investigating chamber or a trial court pronounces a judgment or a declaration of diminished responsibility because of mental illness, it may, by a reasoned decision, order the person's compulsory admission to an establishment mentioned in Article L. 3222-1 of that Code if it has been established, by an expert psychiatric report included in the file of the proceedings, that the person's mental problems require treatment and jeopardise the safety of others or present a serious threat to public order. The representative of the State in the “Département”, or the Police Commissioner in Paris, shall immediately be informed of such decision. The hospitalisation regime in such cases shall be that for hospitalisations ordered pursuant to Article L. 3213-1 of the same Code, the second paragraph of which shall be applicable. Article L. 3213-8 of the same Code shall also be applicable.”
...
“Detainees suffering from mental illnesses listed in Article L. 342 of the Public Health Code shall not be held in a prison establishment.
Regard being had to a detailed medical certificate and in keeping with the legislation in force, the prefectural authority shall secure their compulsory admission, as soon as possible, to a certified health care establishment under Article L. 331 of the Public Health Code.
The rule laid down in the second paragraph of Article D. 394 concerning police surveillance during their hospitalisation shall not apply to them.”
30. In its Opinion no. 94 on “Health and Medicine in Prison” (2006) the National Ethics Advisory Committee on Life and Health Sciences stated:
“... Prisons are increasingly faced with mental illnesses.
Prisons are increasingly being used to confine psychiatric patients: the percentage of psychiatric pathologies is 20 times higher in prison than in the general population. In 2004 an epidemiological survey commissioned by the Health Department and the Prison Service revealed that 14% of detainees (over 8,000) suffered from psychosis and half of those (over 4,000) suffered from schizophrenia.
The tendency is away from psychiatric hospitals towards prisons. The incarceration of people suffering from serious mental disorders can only lead to a loss of bearings and of meaning: the loss of the very meaning of punishment and imprisonment, and in particular of the notion of criminal responsibility; the loss of the very meaning of treatment and the role of the carer; and the same loss of the meaning of the role of the prison warder.
A source of suffering for the sick person (“prison in itself has an aggravating effect on mental disorders”, according to a report of the IGAS and the IGSJ in 2001), mental illnesses are also a source of suffering and confusion for the other prisoners, faced on a daily basis with insufferable, contagious madness. ...
The incarceration of people suffering from serious mental disorders: “madness” in prison. This situation, mentioned above, is one of the major ethical problems concerning, on the one hand, the increasing confusion between the respective meanings of punishment and treatment, and on the other, the right to the protection of health and access to treatment. These serious ethical problems of health protection and access to treatment concern both the right of the mentally ill to the best possible medical and psychiatric treatment of their disorders in conditions respectful of their dignity, and the right of their fellow prisoners to the protection of their mental health in the face of permanent exposure to “madness”. ...
Recommendations
Look for solutions outside prisons so that the very elderly, people with severe disabilities and those suffering from serious psychiatric disorders are taken out of the prison system for ever.”
...
31. In a report of 5 May 2010 on “handling offenders suffering from mental disorders” the French Senate stressed the shortcomings of medical treatment at the RPUs and reiterated the warning of the National Ethics Advisory Committee concerning health and medicine in prison (cited in paragraph 36 above) that incarceration can aggravate the mental condition of certain detainees. The relevant parts of the report read as follows:
“(a) Shortcomings in medical treatment
While there has been considerable progress in medical treatment in the RPUs, there are certain limits that are difficult to overcome:
- there are still not enough medical staff in spite of the significant progress made in recent years ...
- treatment at the RPUs is mainly day care, generally because of the lack of medical staff and the fact that detainees cannot be admitted without their consent. Furthermore, as the above-mentioned study shows, “conditions in the RPUs are not really comparable to conditions in hospitals; the rooms are no different from the cells at seventeen RPUs. This is often a problem in terms of the treatment available, particularly the existence of first-level intensive-care facilities, the risks linked to metal beds when patients suffer attacks, or the presence of alarm systems.
The most objectionable aspect of the treatment of detainees with mental disorders, however, is no doubt the way they are treated in psychiatric hospitals when they need hospital treatment. They are generally admitted without their consent, and often – for security reasons – placed in solitary confinement cells, where they may sometimes be restrained, without any real medical justification. The duration of the treatment in these conditions is particularly brief, often no more than two or three days, which is scarcely enough to secure the patient's stabilisation. ...
b) The deterioration of certain pathologies and the risk of suicide. As stated in 2006 in the opinion of the National Ethics Advisory Committee concerning health and medicine in prison, incarceration can aggravate the mental condition of certain detainees as a result of the combined effects of the aforementioned shortcomings in the treatment dispensed and the living conditions in prisons (overcrowding, difficulty sleeping ...). This state of affairs puts the people concerned in danger, as they may harm themselves (self-mutilation, suicide) or the prison staff or other detainees...”
32. In its report on the organisation of psychiatric treatment (“the effects of the 2005-2010 psychiatry and mental health plan”) published in December 2011, in a chapter entitled “The health-justice programme: unfinished progress”, the Audit Court, stated that the premises of some RPUs were still antiquated, and mentioned the disgraceful state of the RPU at Les Baumettes prison:
...
33. The report by the OIP (International Observatory of Prisons) on “Conditions of detention in France” (Ed. La Découverte, 2012) stated in a chapter on “Psychiatry” that over 20% of detainees suffered from some form of psychosis, and 7.3% of detainees suffered from schizophrenia. It stressed the confusion between punishment and treatment, which is all the more problematic if one considers, “like a Senate information report in 2010, that prison is no place for treatment”. As the Inspector General of prisons observed, “that we actually contemplate treating mental illnesses in prison is in itself disturbing” ... Hence the finding – difficult for the authorities to accept – of the Senate's rapporteur on the draft Prisons Act in 2009 that “for many people suffering from mental disorders prison makes no sense – they waste away in the prison environment, complicating the lives of the other prisoners and the prison staff without receiving proper care”. The report shows the limits of treatment in prison (lack of staff, conditions in the RPUs). Concerning the RPU in Marseilles, it notes that “the general state of the RPU premises is run-down, dilapidated, deplorable (mouldy)”. It quotes a psychiatrist as explaining that “RPUs are not strictly speaking places where people should be hospitalised for treatment; they are places where people are taken care of, generally on a part-time basis, in a prison, subject to the imperatives of prison life ... They are not equipped for intensive care ... They are insanitary places where it is difficult to imagine that certain cells are supposed to offer appeasement, protection and hope” when in fact they are “quite frightening in terms of their appearance and the conditions of hygiene and comfort they offer.” The report also addresses the question of compulsory hospitalisation: “In fact, the time prisoners spend in compulsory treatment does not always allow the requisite treatment to be dispensed. Often reduced to a matter of days, at best it only serves to treat a phase of acute decompensation, but never properly to treat the pathology”. Lastly, the creation of specially equipped hospital units (Unités hospitalières spécialement aménagées – UHSAs) is mentioned. Initially nine UHSAs were to open between 2008 and 2011. Another eight were to be created from 2011 onwards. Because of delays, however, only one unit had opened to date.
...
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-113244
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SAHAP v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Ms Hatice Sahap was born in 1930 and lives in Larnaca. She was represented before the Court by Mr Z. Necatigil and Mrs S. Karabacak, lawyers practising in Lefkosa and Nicosia.
2. Since 1952, the applicant has owned plots of land in the Republic of Cyprus. In 1974, she fled north to the area occupied by Turkey, where she has lived ever since. The applicant discovered in 2003 that part of her property was occupied by the Water Department, a weighing station and a private company; a road had also been built across the plot. She found that in 1994 part of the land had been compulsorily acquired by the Government for the purpose of building the road.
3. The applicant brought proceedings for compensation for the land subject to compulsory acquisition (case no. 205/2003). On 18 February 2008, the District Court of Larnaca delivered judgment in her favour, ordering the Government to pay 512,580 euros in compensation for the compulsory acquisition, with costs and interest until final payment.
4. The applicant’s lawyer made repeated unsuccessful requests for payment.
5. The relevant laws, including Law 139/191 and relevant case-law on application of the legislation, are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§34-100, decision of 6 March 2012). The provisions in issue in the present case are set out below.
6. This provides:
“The payment of any sum due to an owner of Turkish-Cypriot property in relation to such property is suspended during the abnormal situation which exists in the Republic of Cyprus by reason of the Turkish occupation.”
7. Law 139/1991 was amended by Law No. 39(1) of 2010, published in Official Gazette no. 4240 of 7 May 2010, by the insertion of additional provisions. The following was inserted at the end of section 3:
“Provided that in the exercise of his above authority to administer Turkish-Cypriot properties during the abnormal situation the Minister also has the power as custodian, to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular Turkish-Cypriot property or part of it, after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter, including whether the Turkish-Cypriot owner of the property or his heirs or successors in title, as the case may be, occupy property belonging to a Greek-Cypriot in the areas not under the Republic’s control:
Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of Turkish-Cypriot property–
(a) that the matter concerns the administration of property which at the time it came under its regime of custodianship, its Turkish-Cypriot owner had ordinary residence abroad where he had gone at any time before or after the Turkish invasion of 1974, and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic,
(b) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the Turkish-Cypriot owner of the property settled permanently in the Government controlled areas of the Republic and continues to be constantly settled there permanently ,
(c) that the property under administration concerns a house which its TurkishCypriot owner was living [in] and occupying before the Turkish invasion of 1974 and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the Republic.”
8. A new section 6A was inserted into the Law:
“(1) Violation of a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ratified by Law, owing to the application of a provision of this Law, is actionable.
(2) A person alleging violation of any right guaranteed by the above Convention and or its Protocols owing to the application of a provision of this Law in his case, is entitled, in case of rejection of his relevant claim by the Minister, to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation, and to claim for the violation the remedies provided for in this section:
Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him, the action is also directed against the person lawfully in occupation of the property.
(3) In determining in an action under sub-section (2) whether the plaintiff’
(4) Where in an action under this section the court determines that the plaintiff’s right was violated, he is entitled in the action:
(a) to compensation for any pecuniary damage, loss, costs, and expenses actually incurred on account of the violation,
(b) to compensation for non-pecuniary damage or injury sustained on account of the violation,
(c) to legal costs actually incurred by him on account of the violation,
(d) to the issue of a binding order of recognition of right under the Courts of Justice Laws,
(e) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force, or the applicable general principles of law.
(5) For ascertaining the damage attributable to the violation as provided for in subsection (4) and assessing and awarding compensation under the said sub-section, the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they transpire from its case-law in cases of violation of the right concerned which is guaranteed by the above Convention or its Protocols.
Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship, the Custodian and the property’s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff, to any amounts of costs that each has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law:
Provided that the said right of the lawful occupier is only for costs of repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission.
(7) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of Turkish-Cypriot property, he is entitled by action against the owner in whose favour the said judgment was issued, or against his heirs or successors in title, as the case may be, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law while it was under custodianship:
Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship, is entitled by action against the above owner, his heirs and successors in title, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission whilst he was in occupation.”


ITEMID: 001-107657
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MEZO v. HUNGARY AND AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: The applicant, Mr György Sándor Mező, is a Hungarian national who was born in 1963. Currently, he is detained at Szeged Prison.
On 16 June 2003 the Austrian Vienna Court of Appeal finally convicted the applicant, a Hungarian citizen, of two counts of aggravated murder and robbery for having strangled and robbed two of his homosexual partners. It sentenced him to life imprisonment, with the earliest release on parole after 15 years, and to a ban from Austrian territory. The ban entailed that the applicant could involuntarily be transferred to Hungary for the execution of his sentence.
On 8 June 2006 the applicant was surrendered by the Austrian authorities to their Hungarian counterpart.
On 26 January 2006 the Hungarian Budapest Regional Court established that the legal conditions for executing the sentence in a Hungarian prison were indeed met. On 26 July 2006 it converted the applicant’s sentence into life imprisonment under Hungarian law, with the earliest release on parole after 30 years. On 3 August 2006 the Budapest Court of Appeal upheld this ruling (service: 10 August 2006).