ITEMID: 001-59365
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF KEENAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2;Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 8. The applicant is the mother of Mark Keenan who, on 15 May 1993, at the age of 28, died from asphyxia caused by self-suspension whilst serving a sentence of four months’ imprisonment at HM Prison Exeter.
9. The immediate circumstances surrounding Mark Keenan’s death are inevitably obscure, since he took his life while alone. For the rest, the parties have in the main accepted the facts as established by the Commission and these are reproduced below in Section A. The medical reports concerning Mark Keenan’s state of health prior to his death are summarised in Section B.
10. From the age of 21, Mark Keenan received intermittent treatment in the form of anti-psychotic medication for a condition which it appears was first diagnosed whilst he was serving a four-year prison sentence for assault. It appears to have been reported by Mark Keenan that he was diagnosed as suffering from paranoid schizophrenia. Following his release from prison in 1988, Mark Keenan’s general practitioner continued the prescription of anti-psychotic medication.
11. His medical history included symptoms of paranoia, aggression, violence and deliberate self-harm, and his behaviour was sometimes unpredictable. In November/December 1992, shortly before he was admitted to prison, he had received treatment at North Devon District Hospital following two incidents in which he had injected himself with overdoses of insulin. Following the first incident, on 9 November 1992, it was noted that he was complaining of paranoia. Diagnoses of borderline personality disorder and paranoid schizophrenia were made and it was noted that he had a history of frequent episodes of deliberate self-harm. He was discharged after ten days on a prescription of anti-psychotic medication. The second incident, on 16 December 1992, was associated with the breakdown in his relationship with his girlfriend. The admission notes recorded as diagnoses “Personality disorder. Paranoid psychosis. Suicide threats”. He discharged himself on 18 December 1992.
12. On the same day he was admitted to HM Prison Exeter, having been remanded in custody following an assault on his girlfriend. On admission, he was received by the prison’s health care centre for observation and assessment, having mentioned a history of suffering from paranoid schizophrenia.
13. On 21 December 1992, when the medical notes recorded that there had been no evidence of schizophrenia that day, an attempt was made to transfer him from the health care centre to ordinary location. Later the same day he was re-admitted to the health care centre because he had been kicking at his cell door and appeared paranoid to prison staff. The explanation provided by Mark Keenan was that he had taken some cannabis which had “tripped him out” and made him paranoid, shaky and tense. Subsequently, on 23 December, he was discharged to ordinary location having been assessed as fine, with no psychiatric symptoms, cheerful and coping. By the evening, he was complaining that he was “cracking up”. He was advised to “calm down and think positively about going to court tomorrow”. In the event, on 24 December 1992, he was released on bail.
14. Mark Keenan was re-admitted to HM Prison Exeter on 1 April 1993, having been convicted of the assault on his girlfriend and sentenced to four months’ imprisonment. He was again received by the prison’s health care centre for observation and assessment. On 5 April 1993 Dr Keith, the prison’s senior medical officer, consulted Dr Roberts, the consultant psychiatrist who had been treating Mark Keenan before his admission to prison. Dr Roberts advised that Mark Keenan had a personality disorder with anti-social traits and that under stress he disclosed some fleeting paranoid symptoms. Dr Roberts concurred with the medication which Dr Keith had prescribed (thioridazine) and suggested a clopixol injection with chlorpromazine. He also advised that Mark Keenan should be treated symptomatically.
15. On 14 April 1993 Mark Keenan barricaded himself inside the ward room of the health care centre in protest against his proposed transfer to ordinary location. On 15 April 1993, following an adjudication concerning the incident, the governor imposed a suspended punishment of fourteen days’ extra imprisonment. On 16 April 1993 he was discharged to ordinary location but re-admitted to the health care centre the following evening after his cell-mate reported that he was uptight and had fashioned a noose from a bed sheet which he was keeping under his bed. On his return to the health care centre, he was placed in an unfurnished cell and put on a fifteen-minute watch. The entry in his medical notes for 17 April 1993 records:
“Brought to Health Care Unit at 21.30 hours ... states he will hang himself. A noose has been made out of strips of sheets. In conversation with Keenan, [says] he is under pressure from kitchen workers who have stated they will contaminate his food etc. The look of relief on his face was great when I told him he will have to stay here.”
16. A subsequent entry, on 18 April 1993, records “owes on wing hence can’t cope [with ordinary location]”.
17. On 23 April 1993 it was decided that Mark Keenan should be assessed by the prison’s visiting psychiatrist, Dr Rowe. On 26 April 1993, before he had been assessed, a further attempt was made to transfer him to ordinary location. He was re-admitted to the health care centre the following day. The entry in his medical notes for 27 April 1993 records:
“Brought to treatment room shaking and hyperventilating. Declined any further medication. Unable to cope. Admitted to health care centre for observation and assessment. Seen at 17.45 hours. He says he felt panicky and paranoid in main prison. He felt he was going to be attacked. He felt he might have to defend himself. Located in single cell on lower landing.”
18. On 29 April 1993 Mark Keenan was assessed by Dr Rowe, who did not consider that it was currently necessary to transfer him to a hospital for psychiatric treatment, but prescribed a change in his medication, and recorded in his medical notes:
“He is an old patient of mine who suffers from a mild, chronic psychosis. He is not usually violent, although he is easily stressed and then can be unpredictable.”
He also recommended that Mark Keenan should have no association until the panic/paranoia subsided.
19. On 30 April 1993 the question of moving Mark Keenan to ordinary location was again raised with him. The entry in his medical notes for 30 April 1993 records:
“He does not feel fit for [ordinary location] as he is afraid he might be injured, further mention of paranoia by him. To remain in a single cell.”
20. In the course of the day his mental state was noted to deteriorate, with evidence of aggression and paranoia. Dr Seale, who had no psychiatric training, considered that the change in medication might be responsible and therefore prescribed a return to his previous medication. At 6 p.m. Mark Keenan assaulted two hospital officers, one seriously. Following the assault, he was placed in an unfurnished cell within the health care centre and put on a fifteen-minute watch. It is not known how long the watch was kept in place.
21. On 1 May 1993 Dr Bickerton, who had six months’ training in psychiatry as a senior house officer, certified Mark Keenan fit for adjudication in respect of the assault and fit for placement in the segregation unit within the prison’s punishment block. He recorded in Mark Keenan’s medical notes for 1 May 1993:
“Calm and rational. No sign of mental illness. Slept well, feels relaxed. Claims he was frustrated yesterday and this is why he attacked the officer. Fit for normal cellular confinement in punishment block.”
22. The same day, Mr McCombe, the prison’s deputy governor, ordered Mark Keenan to be placed in segregation in the punishment block under Prison Rule 43. Mr McCombe considered segregation appropriate, as Mark Keenan’s behaviour was unpredictable and he posed a threat to staff. No date appears to have been given for his release from segregation.
23. Whilst in segregation, Mark Keenan would have been locked up about twenty-three hours each day. Although the segregation unit was visited each day by a doctor, the prison chaplain and the prison governor, Mark Keenan would, in contrast to location within the health care centre or the main prison, have had minimal contact with staff, and none with fellow prisoners.
24. On 1 May 1993, following his transfer to the segregation unit, Mark Keenan requested a “listener” (a prisoner trained by the Samaritans in the counselling of inmates who may be suicidal). At 6.05 p.m. Mr Gill, one of the prison’s hospital officers, was contacted after Mark Keenan had indicated to prison officers on the segregation unit that he was feeling suicidal. The medical notes record:
“Went to see [Keenan]. 1997 raised [(a form completed for the referral of an inmate, perceived to be a suicide risk, to the medical officer)]. Listener in cell with inmate. Reassurances given that he is not suicidal but tense, agitated [and] needs to talk it over. Will get [medical officer] to see when he attends later.”
25. At 6.45 p.m., however, Mark Keenan was threatening to harm himself and was therefore transferred to an unfurnished cell in the hospital wing and put on a fifteen-minute watch. It remains unclear how long this watch was maintained.
26. At 7.45 p.m. Dr Bickerton attempted to speak to Mark Keenan through his cell door. Whilst noting that he appeared very agitated and distressed, and claimed to be hearing voices and thinking he was Jesus Christ, Dr Bickerton doubted that he was suffering from any psychotic illness. Mark Keenan’s medical notes record that he spent the greater part of the night banging on and kicking his cell door, shouting obscenities and making threats to prison staff. On 2 May 1993 Dr Simkins recorded in Mark Keenan’s medical notes:
“This morning denying he is suicidal. Verbally abusive to staff. Some bruises from hitting door. This man is a considerable hazard to staff and has become obnoxious to other hospital inmates due to his behaviour. He is unpredictable and has made threats to his life. He has been placed on Rule 43. I have explained to him that his remaining in the [unfurnished] cell is in order to assess his attitude in the next 24 hours. I will increase chlorpromazine to 400mg qds and resume Kemadrin and chloral nocte. He says he will not take medication.”
27. The medical notes for 3 May 1993 record:
“a.m. – very much better in attitude. Slept well. Requests to return to [the segregation unit in the punishment] block. Agreed.”
28. Mark Keenan was duly returned to the segregation unit. A note in the segregation unit’s occurrence book for 3 May 1993 records:
“Keenan [was] brought in from the hospital. Seems slightly more lucid than before, however still needs watching. At tea time Keenan asked to [talk to a listener] as he stated he felt he was ‘going into one’, which I took to mean kicking off ... staff beware.”
29. The medical notes record at 9 p.m.:
“Troublesome in block. Given extra chlorpromazine. Seemed to calm down after a chat. If he is talking suicidally overnight then unfurnish his block cell and review ‘mane’ [query, in the morning].”
30. Save for a short note on 4 May 1993 that at “11.00 hours clopixol 500 mg given”, no further entry was made in Mark Keenan’s medical notes from the 3 May 1993 until his suicide on 15 May 1993. Dr Bradley, who had no psychiatric training, saw Mark Keenan in the course of routine morning visits to the segregation unit on 4 to 7 and 10 to 14 May 1993. She recalled:
“ ... We had the cell door open on the majority of occasions. I recall there may have been one time when I spoke through his glass window ... but that was because they were short of staff. He had the opportunity to talk to me.
We discussed his medication. He never mentioned any feelings of depression to me or not coping. On the whole Keenan appeared calm and with it with me. He appeared clear and not disturbed. I also checked with the staff as to his behaviour through the day, and they replied that there was nothing that concerned them.”
31. The occurrence book of the segregation unit records, however, on 4 May 1993:
“Keenan abusive, aggressive and offering violence to staff. Relocated to [cell] A14 for a quietening down period. Keenan phone call to solicitor at 10.00 hours re assault on H/O Dent. On return [from phone call] to A1 [landing] states he will behave himself. Relocated to [cell] A1-5.”
32. The entry for 6 May 1993 records:
“Keenan refused cup of tea. Said there was something out in it. When told that there was nothing out in it he decided to drink it. He is starting to act very strange. Staff to be aware.”
33. The entry for 7 May 1993 records:
“Keenan seen by doctor. Refused medication. Staff to still offer medication. To be logged if taken or refused.”
34. Following the entry on 7 May 1993 there is reference to the fact that on 8, 9 and 10 May 1993 he accepted his medication. Thereafter there is no reference to Mark Keenan in the occurrence book until his suicide on 15 May 1993.
35. In a letter to his mother, dated 13 May 1993, he complained that his state of mind was not very good.
36. On 14 May 1993 Dr Bradley assessed Mark Keenan to be fit for adjudication in respect of his assault on the two prison officers on 30 April 1993. The record of the adjudication contains the certification by the doctor that he was fit for adjudication and for cellular confinement. The doctor added the following observations:
“At the time of the alleged offence Mr Keenan was receiving medication for a chronic psychiatric problem and he had had a recent change in medication.”
37. The adjudication took place on 14 May 1993, some two weeks after the events concerned. Mark Keenan was found guilty of assault. In mitigation, he told the deputy governor, Mr McCombe:
“I suffer from a split personality disorder. I have been in and out of institutions all my life. I now have a chance to make good. My mum has booked a holiday in Cornwall. I have behaved myself.”
The deputy governor said that he noted what the applicant said but that he was facing extremely serious charges. He awarded twenty-eight additional days in prison together with seven days’ loss of association and exclusion from work in segregation in the punishment block. At that point, Mark Keenan had only nine days to go before his expected release. The sentence had the effect of delaying his release from 23 May until 20 June 1993 – pursuant to the applicable provisions, he had been entitled to release after half of his four-month sentence, with account also being taken of time spent in detention on remand.
38. Shortly after the adjudication, Mark Keenan was seen by the chaplain, who recalled in his evidence at the inquest that Mark Keenan had been unhappy about the decision and had said: “I was thinking of kicking off, but I don’t think I will.” The chaplain stated that at no stage did Mark Keenan indicate that he might take his own life.
39. At 9.45 the following morning, on 15 May 1993, Mark Keenan was seen by Dr Bickerton who recalled that he seemed calm, polite and relaxed. He was then seen by the deputy governor, Mr McCombe, who later described him as having been in a highly agitated state, but relaxing when he was informed that his right to buy tobacco had not been suspended.
40. In the afternoon Mark Keenan was visited by a friend, M.T., whom he had known for about five years. M.T., who saw Mark Keenan for some twenty minutes, found him to be disappointed that he had an additional twenty-eight days to serve in prison, but otherwise in good spirits and, when M.T. left, as looking forward to his next visit the following Saturday. Prison officer Haley, who returned Mark Keenan to his cell following the visit, recalled that Mark Keenan was very talkative and appeared to be in high spirits.
41. Prison officer Milne, who saw Mark Keenan at or about 5.15 p.m., recalled that he seemed all right and asked if he could use the telephone at 6 p.m. Mr Milne agreed, but in the event it does not appear that Mark Keenan was allowed out of his cell to make the call. According to the evidence given later at the inquest, Mr Milne, who was on duty on landing A1 – the segregation block –, was absent in the toilet for ten minutes from about 6.25-6.30 p.m. On his way from the toilet to assist on landing A3, he noticed that the cell call indicator for landing A1 was depressed. The call buttons in each cell lit up indicators on each landing to ensure that if an officer was not present on one landing, the light could be seen by officers on other landings. There was no noise issuing from the indicator as it seemed that someone, a prisoner or prison officer, had de-activated the buzzer, access being possible to the system from each landing. Mr Milne called to another officer to accompany him and immediately went to Mark Keenan’s cell and proceeded to open it. He estimated that a minute went by between seeing that the light was on and opening the cell door.
42. At 6.35 p.m. on 15 May 1993, Mark Keenan was discovered by the two prison officers hanging from the bars of his cell by a ligature fashioned out of a bed sheet. At 7.05 p.m. he was pronounced dead.
43. At some point before he committed suicide, Mark Keenan had depressed the call button in his cell. It would not have been possible for him to depress the call button whilst suspended. It was Mr Milne’s evidence at the inquest that Mark Keenan must have depressed the call button during the ten minutes when he was using the staff toilets since the light on the landing, which would have indicated that the call button had been depressed, was not on when he left.
44. In an undated letter, received by Dr Roberts after 15 May 1993, Mark Keenan wrote:
“As you will well know I am in prison for assault on [G.S.], which I received 4 months. I cannot take much more. I have seen Dr Rowe in here he wrote me up for some new tablets fenzodine white tablets like white smarties. I just went mad on them, and ended up on assault on two staff. I am asking you if you can give me treatment when I get out and get me better. I was using drugs in Bmth as well, I feel very unstable but the doctor will not help me at all. I need help please could you send the Governor a report on me, I can’t take much more.”
45. On 25 August 1993, at the inquest before a coroner, the jury recorded a verdict of death by misadventure and that the cause of death was asphyxiation by hanging. Evidence was submitted in public proceedings by fourteen witnesses, six of whom gave oral testimony. The witnesses included the applicant, the prison officers on duty who had discovered Mark Keenan’s body, the police inspector who had investigated the death, the deputy governor of the prison, a number of prison hospital officers and the senior prison doctor, the prison chaplain and M.T., who had visited Mark Keenan on the day he died. Statements were submitted by these persons, as well as by Dr Bickerton and Dr Bradley.
46. On 17 November 1993 the applicant was granted legal aid limited to obtaining further evidence and counsel’s opinion on the merits and quantum of damages in a potential action against the Home Office in respect of the treatment of her son and the conditions of his detention.
47. In a report dated 17 August 1994, Dr Maden, the consultant forensic psychiatrist instructed by the applicant’s solicitors, expressed his opinion that Mark Keenan, as a prisoner suffering from paranoid schizophrenia, was unfit to be placed in segregation in the punishment block and that the failure of the prison authorities to accommodate him in the hospital wing was an important contributory factor to his death (see paragraph 50 below).
48. In an opinion dated 14 October 1994, counsel advised in the light of the psychiatrist’s report that, notwithstanding the grave breach of duty by the Prison Service in keeping Mark Keenan, a mentally ill prisoner, in a punishment cell without any proper medical monitoring, an action in negligence under the Law Reform (Miscellaneous Provisions) Act 1934 would not succeed since there was no evidence that Mark Keenan had suffered any injury of a kind in respect of which a cause of action could be maintained. He was already mentally ill and there was no indication that he suffered any worsening in his condition, or developed any new condition as a result of his confinement. Mere distress was insufficient, and the fact of his death was not such as to constitute in English law an injury in respect of which a cause of action lay. In respect of proceedings under the Fatal Accidents Act 1976, counsel advised that, since Mark Keenan was over 18 when he died, the applicant did not qualify for bereavement damages and there were no dependants who might be able to pursue a claim. To the extent that the applicant might have incurred any funeral expenses, these were not sufficient to justify the support of legal aid. The effect of this advice was to prevent the applicant from pursuing any contemplated litigation since, in the light of the advice, legal aid would be withdrawn.
49. By a letter of 12 December 1994, the applicant was informed by the Legal Aid Board that they were considering whether to discharge her legal aid certificate given counsel’s opinion that she had no reasonable prospect of success. By a decision of 8 March 1995, the Legal Aid Board discharged her legal aid certificate since it was unreasonable in the circumstances that she continue to receive assistance.
50. Dr Maden, MD, MRCPsych, a consultant forensic psychiatrist at the Bethlem Royal Hospital, prepared a report at the request of the applicant’s solicitors, on the basis of materials from the inquest, Mark Keenan’s prison medical record, his medical notes from North Devon District Hospital and his general practice medical record. He had had no contact with Mark Keenan before his death. His report included the following:
“Family and personal history
There is a family history of psychiatric disorder, in that his maternal grandmother is said to have died in a mental hospital, his mother suffered a severe depressive illness after the cot death of Mark’s younger brother and his father is described as an alcoholic who was occasionally violent.
Mark Keenan[‘s] childhood was disturbed and unhappy. His parents separated when he was about a year old. His mother suffered from severe, intermittent depression throughout his childhood. His behaviour at school was disruptive, including fighting and truancy. He is said to have been in care at various times from the age of 12 years, and spent time in foster homes, detention centres and approved schools. His work record was poor, consisting of occasional short-term manual work. A report by Dr Adam (dated 23.3.93) states that he tended to stop jobs because of paranoid thoughts.
His disturbed behaviour continued after leaving school. He is said to have spent times in London at the age of 15 years as a rent boy and convictions included breach of the peace (age 15 y.), car theft and breaking into a jewellers (age 16 y.), convictions relating to fighting at the ages of 17 and 20 years and a conviction for G.B.H. at the age of 21 years after stabbing his sister’s boyfriend.
Psychiatric history
He is said to have been diagnosed as suffering from paranoid schizophrenia when he was aged 21 years (in 1985), whilst he was serving a prison sentence for the offence of G.B.H. He had paranoid thoughts and was started on treatment with cloxipol (anti-psychotic medication).
Whilst serving his prison sentence, he is said to have spent a brief spell in Grendon Underwood prison, where he was told that his paranoid schizophrenia was too severe for him to get involved in group therapy.
In 1988, he was discharged from prison and continued clopixol until it was changed to depixol (a similar, injectable, anti-psychotic medicine) by his G.P. ...
His first admission to a psychiatric hospital was to St Annes, Poole, ... in December 1988.
From 9.11.92 until 19.11.92, he was admitted to North Devon District Hospital. He had taken an overdose, injecting himself with insulin. He was also complaining of ‘paranoia’. The admission summary lists the diagnoses as ‘borderline personality disorder’ and ‘paranoid schizophrenia’. It also notes his history of ‘frequent episodes of DSB (deliberate self-harm)’. The discharge summary also noted that he was ‘unable to cope living on his own’... and that he was disruptive on the ward ... It was noted that ‘there did not seem to be too much evidence for his paranoia’, but he was discharged on three different types of anti-psychotic medication (including a fortnightly injection) and an anti-depressant. ...
From 16.12.92 until 18.12.92, he was admitted to North Devon District Hospital, after taking an overdose following the breakdown of his relationship with his girlfriend. The summary of this admission lists the diagnoses as ‘Personality disorder. Paranoid psychosis. Suicidal threats.’ Shortly after taking his own discharge, he was arrested for the assault on his former girlfriend which led to his prison sentence. ...
Opinion
1. Mark Keenan suffered from paranoid schizophrenia. He appears to have developed this illness in 1985 ... After his discharge from prison in 1988, he maintained fairly regular contact with psychiatric services and his G.P. and for most of this time, was being given an injectable anti-psychotic medication. Among the psychiatrists who saw him, there appears to be general agreement about the diagnosis of schizophrenia.
2. I note that he was also given diagnoses of personality disorder and substance abuse at various times. There is evidence to support the diagnosis of personality disorder. However, none of the psychiatrists who saw him appear to have doubted the additional diagnosis of schizophrenia and all continued his treatment with anti-psychotic medication. The significance of the diagnosis of personality disorder is that he would have been a more difficult patient to look after, than the average patient with schizophrenia.
3. Schizophrenia is a serious and long lasting mental illness that may be controlled to a greater or lesser extent by medication but is not cured by that medication. Self-harm, suicide and violence are recognised complications of schizophrenia. Many of the symptoms which Mr Keenan showed in the time leading up to his death are recognised symptoms of schizophrenia, including paranoia, hearing voices, disturbed sleep, aggression, ambivalence and thoughts of self-harm. These symptoms can have other causes but, in the case of a patient known to suffer from schizophrenia, it would be usual to assume that the symptoms were due to the schizophrenic illness. It is impossible to make any reliable distinction between symptoms which are due to schizophrenia and those which are due to an individual’s personality.
4. The diagnosis of schizophrenia has important implications. The management of the condition is primarily the responsibility of doctors, as the normal prison rules cannot be expected to cope with persons whose mental state is grossly abnormal, without guidance from doctors. The following comments are therefore made with reference to what would constitute an acceptable standard of care for a person with schizophrenia.
5. From the evidence I have seen, the standard of medical record keeping was inadequate on at least two occasions. Between 19.4.93 and 26.4.93, the management plans changed from continuous observation in the prison Health Care Centre, and a decision to seek the opinion of a visiting psychiatrist (Dr Rowe), to a decision to transfer Mr Keenan to ordinary location. There is no information in the medical notes to explain this decision. On 17.4.93, Mr Keenan was stating to staff that he intended to hang himself and a noose had been found in his cell. Given this evidence of serious suicidal intent, it would be good practice to record in the medical notes the reason for discontinuing the higher level of observation and returning to normal location.
There is no entry in the medical notes for the eleven days leading up to Mr Keenan’s death. Given that the entries up to this point record disturbed and unpredictable behaviour and threats to his life and threats of violence to others, there were good reasons for monitoring his mental state regularly and there is no record to show that this was done.
6. Following the visit and assessment by Dr Rowe on 29.4.93 the evidence I have seen suggests that the standard of care received by Mr Keenan fell below that which he was entitled to expect. Dr Rowe confirmed that Mr Keenan suffered from ‘mild chronic psychosis’ and recommended adding a new form of anti-psychotic medication to his existing regime of anti-psychotic medication. A recommendation was also made on the same day that Mr Keenan not be allowed association until his panic/paranoia had subsided. Dr Rowe (who had previous knowledge of the patient) also noted that the patient was not usually violent.
On the next day (30.4.93), his mental state was noted to deteriorate with evidence of paranoia and aggression. The change in medication recommended by Dr Rowe was then reversed. On 1.5.93, Dr Bickerton concluded that there was no sign of mental illness and pronounced Mr Keenan fit for normal cell location in the punishment block.
With the benefit of hindsight, it is apparent that Mr Keenan was not fit to be located in the punishment block. Two things run throughout his medical notes. One is his fear of being located anywhere other than the hospital, the second is his tendency towards suicidal behaviour. I believe that the failure to accommodate him in the hospital wing was an important contributory factor to his death.
In my opinion, it is not possible to justify the reversal of the change in medication recommended by Dr Rowe, without further reference to Dr Rowe (or another psychiatrist). Dr Rowe’s clear opinion was that the patient was suffering from a psychosis and that the correct treatment was a change in anti-psychotic medication. Dr Rowe’s advice was not followed consistently. For example, Dr Bickerton concluded on 1.5.93 that there was no sign of mental illness, despite Dr Rowe’s opinion of 29.4.93 and the evidence in the medical notes of paranoia and aggression on 30.4.93. It is most unlikely that the type of mental illness documented by Dr Rowe (described as chronic) would have disappeared completely within two days.
On the evidence I have seen, I believe that Dr Bickerton was incorrect in his judgment (that there was no mental illness present on 1.5.93) and that, as a doctor without psychiatric qualification, he should not have taken a different course of action from that recommended by the psychiatrist.”
51. Dr Reveley, a second consultant psychiatrist instructed by the applicant’s solicitors, expressed her opinion on the basis of the inquest proceedings and medical records, including the notes from prison and the North Devon District Hospital. She had never met or treated Mark Keenan. Her report included the following:
“Opinion
37. I am of the view that Mark Keenan suffered from paranoid schizophrenia, paranoid type as defined by the ICD-10 classification of Mental and Behavioural Disorders 1992. One of the essential features of this disorder is presence of delusions in the context of a relative preservation of cognitive functioning and affect. The individual suffering from this disorder is therefore generally able to describe the typical examples of hallucinations. Examples of the most common paranoid symptoms included delusions of persecution, grandiose delusions, hallucinatory voices that threaten the patient, hallucinations of taste and smell. There is ample evidence that Mark Keenan suffered from such symptoms during his final prison sentence. Violence and self-harm are often associated with this condition, as indeed they were in the case of Mark Keenan. The Diagnostic and Statistical Manual of Mental Disorders, 4th edition 1994 draws attention to this finding: ‘The persecutory themes may predispose the individual to suicidal behaviour, and the combination of persecutory and grandiose delusions with anger may predispose the individual to violence.’
38. Mark Keenan was also variously diagnosed as suffering from substance abuse and personality disorder. Neither of these diagnoses is inconsistent with paranoid schizophrenia and they often coexist with that condition. It is also clear Mark Keenan was consistently treated with anti-psychotic medication, and that the prison medical staff impliedly accepted a diagnosis of psychosis by continuing to treat with anti-psychotic medication. Indeed he specifically received a diagnosis of ‘mild chronic psychosis’ while in prison. Any diagnosis of psychosis is always of the utmost significance. There are three main psychiatric conditions that lead to psychosis: schizophrenia, manic depressive disorder and substance abuse (e.g. ecstasy, LSD, amphetamines, alcohol, and sometimes cannabis). It may be impossible to distinguish between the individual psychotic disorders when someone is first seen by a psychiatrist, and uncertainty about a patient’s diagnosis may remain for years. But having said this, there is almost never any disagreement among psychiatrists about whether a patient is psychotic. Indeed psychotic symptoms can be successfully treated with anti-psychotic drugs even where there is some diagnostic confusion about the classification of the psychotic state. The evidence is that the prison medical staff while accepting that there was no formal diagnosis of his mental disorder, continued to treat his psychotic symptoms with anti-psychotic medication. ...
41. Mark Keenan was treated with anti-psychotic medication while in prison. On account of the medication his condition is, apparently, maintained by this medication with the exception of the isolated flare-ups. These isolated incidents are regarded by the prison doctors as discrete episodes of bad behaviour. When there is no observable episode, Mark Keenan appears to have been regarded as mentally well, or at least sufficiently well to be punished by segregation. This is in my view to adopt a dangerously over-simplified view of mental disorder. The analogy would be with someone with a fever who is given fever reducing drugs, and thereafter put outside on a cold winter’s day on the principle that he is showing no signs of a temperature. In such circumstance no-one would be surprised if there were a recrudescence of the fever. In Mark Keenan’s case there was a failure by the prison authorities to recognise a fundamental psychiatric truth when they found him fit for the punishment block. They were assessing the mental state of a heavily medicated individual whose underlying problems were being maintained and masked by that medication. (Despite the finding that he was sufficiently normal for the punishment block I note that there was no indication in the notes that his medication should be discontinued).
42. Because Mark is adjudged to be well, he received no nursing care on the punishment block. Nursing care is not just about the administering of medication. It is vital to the successful management of mental illness, not least because the nurse is a trained observer and can react quickly and effectively where there are indications that an individual’s mental state is a cause for concern. Nursing is primarily the process of looking after physical or emotional needs of patients with the aim or restoring, improving, maintaining, or promoting well-being. The notion of punishment is incompatible with the goals of nursing – and indeed with all medical care.
43. An acceptable level of care in the management of Mark Keenan’s condition during this period would have included a close monitoring of the medication as regards dose and side effects; a close monitoring of his mental state as regards symptomatology, and as regards any increased risk of self-harm or suicide. There is no evidence that adequate monitoring of this type was performed during the last thirteen days of his life.
44. This is particularly surprising in the context of his earlier problems which included self-harm and violent outbursts and given that there had been a number of changes in the medication prescribed during the time he spent in Exeter Prison.
45. The nature of schizophrenia is such that there are remissions or periods of less florid symptomatology where the positive symptoms, i.e. those associated with a distortion of normal functioning, are not exhibited. During such periods the so-called negative symptoms may continue to be in evidence. Negative symptoms are symptoms that reflect a diminution or loss of normal functioning. They include affective flattening (immobility of feature, unresponsiveness, poor eye contact and reduced body language), alogia (poverty of speech which is often manifested by brief, laconic, empty replies, often accompanied by a diminution in the number of thoughts which is reflected in decreased fluency and productivity of speech), avolition (an inability to initiate and persist in goal-directed activities) and anhedonia (loss of interest and loss of pleasure in life). These negative symptoms account for a substantial degree of morbidity associated with the disorder. They are particularly common in the prodromal (before episode) and residual (after episode) phases of the disorder, and can often be very severe in their own right. ...
47. It is my view that Mark Keenan was recognisably at a very high risk of deliberate self-harm or suicide. This risk would have been evident even if he had not been placed on the punishment block during the last days of his life. It has been shown that, compared with the general population, people who deliberately harm themselves experience four times as many stressful life problems in the six months before the act. The events are various but a recent quarrel with a spouse, girlfriend, or boyfriend is particularly common and other events include separation from or rejection by a sexual partner, and a Court appearance. About a third to a half of all people who harm themselves are suffering from a Personality disorder. Several studies agree that there are a number of factors that seem to distinguish patients who go on to repeat deliberate self-harm. These include previous psychosis, personality disorder of the anti-social type, criminal record, alcohol or drug abuse, lower social class, and a history of unemployment. It is also significant that among patients who have been involved in an earlier episode of deliberate self-harm, the suicide rate in the subsequent 12 months is about 100 times greater than in the general population.
48. As regards the risk of completed suicide, studies show that prisoners have a higher suicide risk than the general population, and that one in ten of all those suffering from schizophrenia end their own lives, and that four fifths of all those who take their own lives are being treated with psychotropic drugs. (The above statistics are taken from the Oxford Textbook of Psychiatry, OUP, 1983, and are widely accepted.)
49. It is not possible to quantify precisely what the degree of risk as regards self-harm or suicide was for Mark Keenan, It is my opinion that he was recognisably in one of the very highest risk groups and that following his removal to the punishment block it was more likely than not that there would be some episode of self-harm during the period of his seclusion. This being the case, I am of the view that the failure to recognise this risk meant that his treatment during the last eleven days of his life fell substantially below acceptable standards of care. ...
51. Individuals with paranoid delusions can often be helped by psychological support, encouragement and assurance. During treatment best results are achieved if doctor/nurse maintains a good relationship with the individual, and is dependable and avoids letting the patient down. He should show compassionate interest in the individual’s delusions, but without colluding in them, or condemning them, and most importantly without ignoring them. The treatment Mark Keenan received in the punishment block fell far short of this model.
52. In my view the way in which Mark Keenan, an individual suffering from paranoid schizophrenia, was treated, was likely to arouse in him feelings of hopelessness, fear, anguish, and inferiority. The circumstances of his imprisonment on the punishment block were humiliating, debasing and degrading, and had the effect of undermining his will to cope with, and battle against, his psychotic illness. His will to resist the illness was cumulatively undermined and resulted in the taking of his own life. The prison regime to which he was subjected disregarded his basic right as an ill person to be medically treated and properly cared for and thereby broke his will to endure imprisonment. The International Code of Medical Ethics declares that ‘Any act or advice which could weaken physical or mental resistance of a human being may be used only in his interest’. The acts performed and the advice given by medical staff in respect of Mark Keenan’s treatment were manifestly not in his interest. What he suffered during the last days of his life was likely to have been terrifying, and I use that word advisedly, in its original sense of instilling terror. I have treated many paranoid schizophrenics and I have never doubted their capacity to believe absolutely in the apparent threats created by their delusions. A punishment that requires a psychotic individual to face those threats alone and without proper medical support is wholly unacceptable, and in my view constitutes an inhuman and degrading punishment.”
52. In a report dated 2 August 1996, Dr Keith, the prison’s senior medical officer, in response to the psychiatric reports obtained on behalf of the applicant, stated as follows:
“These reports were compiled upon the documentary evidence available to the doctors and to my knowledge neither of them had the opportunity to see or examine Mr Keenan. The medical weight of their reports must therefore be significantly diminished. These reports were prepared over a year (Dr Maden) and nearly two years (Dr Reveley) after the death of Mr Keenan.
The historical data given in both reports was compiled from other documents and originally probably would have come from Mr Keenan himself or his mother – the basis of most medical histories comes directly from the patient without ascertaining their veracity. On reception Mr Keenan gave a history of schizophrenia – no specific symptoms of schizophrenia were observed from his reception onwards during his time in custody on remand or when convicted.
From comments by Drs Maden and Reveley upon entries in the Inmate Medical Record (IMR) – I prescribed Clopixol because Mr Keenan was so adamant that he wanted it and was helped by it, and because Dr Roberts had suggested it be tried, ‘if he doesn’t do so well’. It was prescribed not as an anti-psychotic but as a tranquilliser on the basis of the above. My conversation with Dr Roberts and my prescribing Clopixol are in fact separate entries in the IMR and it is important to refer to the original IMR entries rather than my witness statement. I recall I was reluctant to prescribe Clopixol because of the paucity of symptoms and signs of psychosis. As far as I can recall, Keenan gave no reason why he did not want to continue his Thioridazine except that he received no benefit from it and he was adamant that he felt better on Clopixol and Chlorpromazine. It is important to note that I do not recall that he had experienced any side effects due to Thioridazine which might have limited my prescribing Chlorpromazine. Both Drs Maden and Reveley put great weight upon his medication indicating a diagnosis – this was not the case. The dosage of Clopixol commented upon in Dr Reveley’s report was indicated to me by Dr Roberts.
The symptoms noted on 3.4.93 were quite reasonably thought possibly to be due to the change in medication and Dr. Simkins indicated that he return to his previous medication. Dr Rowe attended the prison for two half-day sessions weekly at that time and was our only visiting psychiatric resource. Dr Reveley implied that because Mr Keenan was unwilling to go to the main prison on 14.4.93 he should have been kept in the hospital. Were unwillingness to leave an indication of continuing location in the hospital we would have a totally static population.
In the IMR for 17.4.93 the entry was made by a Hospital Officer not a Doctor. The Hospital Officer, SEN Gill, has no formal psychiatric training. We did not have, at that time, any psychiatrically qualified nurses. Please see my entry for 18.4.93, ‘owes on the wing hence can’t cope’. The reports do not refer to this. If he owed on the wing it is highly likely that he would be threatened with food contamination, this would represent reality rather than paranoia, and there is always the possibility that the noose was made so that he could return to the sanctuary of the hospital. A prepared noose is enough indication in itself for hospitalisation and 15 minute watch irrespective of mental state rather than implying a disturbed mental state in itself as described by Dr Reveley.
The entry for 23.4.93 in the IMR, “to assess next week”, was cancelled by my hand probably fairly soon after it was written (most likely on 26.4.93 – same pen). The interpretation of this was that there was no indication that he needed to see Dr Rowe and that he was well and symptom-free. He was noted fit for work and gym. No contemporaneous record was made because there was nothing of import to note.
It is appropriate here to observe that while there is an agreed paucity of notes at some (and only some) stages of the IMR ... nil entries may be taken as indication that no abnormality or overt disorder was present.
On the segregation wing all prisoners are medically screened before adjudication and the range of punishments known to the doctor. The duty doctor does the round in the segregation unit before the Governor attends there so that any new inmates located there can be medically checked prior to the Governor’s adjudications. All inmates in the segregation unit are seen every day by the duty doctor. If an inmate in the segregation unit becomes ill so that hospital care is indicated he is promptly transferred to the hospital. A diagnosis of a mild chronic psychosis is not a contra-indication per se for transferring to the segregation unit – indeed the daily visits by the Governor, Doctor and Chaplain provide a greater degree of observation and care than possible on the main wings. I do not think that Mr Keenan would have been continuously an in-patient in a psychiatric hospital were he in the community. I must agree that the segregation unit generally is not conducive to mental well-being but all prison medical staff are trained in and are highly aware of the effects of imprisonment and segregation and review each inmate on the segregation unit each day with this in mind. The duty doctor’s daily visits to the segregation unit to assess Mr Keenan’s medical state included judging whether his medication level was appropriate and whether he was a suicidal risk. Dr Reverley’s implication that medical staff connive with the ‘authorities’ to punish is totally untrue. We provide medical care and our ethical stance is concerned with this and this alone. We hold doctors’ meetings regularly at which our ethical stance is clearly outlined. This is something I know we all care about passionately and is the cornerstone of the medicine all of us practise here.
I am not of the opinion that Mark Keenan suffered from paranoid schizophrenia. This is based on my own observations and Dr Roberts’ doubt about his diagnosis (and he was the Psychiatrist who had observed him as an in-patient the most recently prior to his reception). We did not have a patient, ‘known to suffer from schizophrenia’, (Dr Maden). He was known to us via Dr Roberts’ information as a patient suffering from, ‘personality disorder, anti-social, under stress, some fleeting paranoid symptoms’. Keenan appeared quite normal most of the time during his periods of custody and observation.
Self-harm, suicide and violence are recognised complications of personality disorder. Only the self reported paranoia and hearing voices are symptoms of schizophrenia. There is ample evidence that Keenan’s episodes of paranoia were intermittent and transitory. (Dr Roberts described, ‘episodic paranoia’, and Dr Reverley, ‘isolated flare-ups’), linked to the taking of illicit substances. From the IMR, “says he has had cannabis which tripped him out and made him paranoid’. ...
Mr Keenan was afraid of being on ordinary location but not of being in the segregation unit. This supports a theory that he had real and not imaginary fears for his safety on the wing, especially in the light of him telling me ‘he owed’. Nevertheless Mr Keenan was always admitted to the hospital when he had a ‘flare-up’. Dr Reverley’s analogy of mental illness and a fever is neither appropriate nor convincing.
There is no clear description of delusions, in fact their description is vague except, ‘thinking he is Jesus’. I did not find any continuity of a strongly held delusional system.
It is clear from the IMR that Mr Keenan had long periods when he did not display any symptoms or signs of mental illness and he was therefore at these times mentally well. Being well there were no contra-indications to being located in the main prison or segregation unit.
It was notable that Mr Keenan did not display the signs that Dr Reveley describes for us, i.e. immobility of features, unresponsiveness, poor eye contact, reduced body language, alogia. This was further evidence to us that he did not suffer from a florid psychosis.
Overall, from the two reports prepared, I find the evidence for a florid psychosis to be slim. Dr Reveley is not a forensic psychiatrist and appears unfamiliar with prison medical care. Her comments are emotive rather than objective.
Mark Keenan was known to us as an impulsive, self-harming and aggressive man who periodically had episodes when he described paranoid feelings and vague delusional symptoms. There is no evidence to support the diagnosis of schizophrenia with which he strongly self-labelled himself. His disturbed episodes and death may well have been the sequel to drug taking in the main wing, consequent upon which were threats of reprisal.”
53. Dr Faulk, instructed on behalf of the Government, stated, inter alia, as follows:
“Opinion
36. It has been asserted that by the complainant and the 2 psychiatrists (Drs Maden and Reveley) that have reviewed the case that Keenan was wrongly diagnosed, his symptoms overlooked and that he was placed in situations which would inflame his condition. Both doctors concluded that Keenan suffered from schizophrenia and that much of his behaviour could be explained by this. Having made this diagnosis they say his fears and anxieties must have been due to an underlying delusional state. This is an assumption based on the belief that Keenan was schizophrenic. On the basis of their assumption that Keenan was seriously mentally ill it is also asserted that the prison should have anticipated his suicidal tendencies and taken better precautions and not subjected him to the privation of the punishment block.
37. The prison was not staffed by consultant psychiatrists. The doctors there would very properly rely on the opinion of the NHS specialists who had been caring for their inmates before imprisonment. The diagnosis given to them by Keenan’s latest psychiatric specialist (Dr Roberts) was of ‘personality disorder, antisocial in type’, and that Keenan was liable to ‘fleeting paranoid symptoms’ when under stress.
38. It is true that Dr Rowe had also treated Keenan in the past and had described him as suffering from ‘a mild chronic psychosis’. This is not a specific diagnosis but a general description. In any case Dr Rowe did not consider Keenan so ill as to require treatment in psychiatric hospital. He indicated, like Dr Roberts, that Keenan would have short lived periods of psychosis (and panics) at which time he would need special care and treatment. He recommended that Keenan not be given association until recovered from his ‘panic and paranoia’. This recommendation seems to have been met.
39. The staff in Exeter proceeded along the lines outlined by Dr Roberts giving the medication he recommended in the hope of reducing Keenan’s symptoms e.g. his volatility, his poor response to stress and his tendency to transient psychotic periods. They also admitted Keenan to the HCC when his condition appeared to deteriorate.
40. Much of Keenan’s behaviour can be understood as manipulative to escape the pressures of the ordinary wings into the relative peace of the HCC. There is no evidence that the fears he expressed about being attacked on the wings were not understandable or even reasonable ones. There is no reason, given Dr Roberts’ diagnosis, not to accept Keenan’s account at face value. Where there were episodes which might have been psychotic ones (e.g. when he claimed to be Jesus and hearing voices) he was taken into the HCC and appeared to recover quickly as Dr Roberts indicated he would.
41. In the end Keenan seemed to accept the regime of the punishment wing and settle down. The observations we have all support that this was so. Keenan obviously was initially angered by the punishment given out on 14.5.93 though he seemed to have overcome his anger. There was no evidence that he had become psychotic. His worries (15.5.93) about his access to the shop being stopped by the governor were perfectly understandable. It is not necessary to postulate mental illness to explain them. I conclude that the medical management of Keenan during his stay in Exeter prison was perfectly reasonable particularly given the opinion of Dr Roberts. We do not know what Keenan intended on the night of 15.5.93. The pattern was very similar to previous life threatening attempts with a warning to others so he might be saved. Perhaps he had decided that he could not or would not face a further period on the punishment block and that he would demonstrate this by the attempt during which he would be saved and returned to the HCC. I do not think anyone could have anticipated what he did or when he did it. My only criticism would be that at the very end scissors to cut the ligature were not available on the punishment wing.”
54. Section 7 of the Prison Act 1952 required each prison to have a medical officer who, according to Rule 17 of the Prison Rules 1964 promulgated by the Secretary of State, was responsible for “the care of the health, mental and physical, of the prisoners in that prison”.
55. Rule 18 provided:
“(1) The medical officer shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. ...
(2) The medical officer shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision and care.
(3) The medical officer shall inform the governor if he suspects any prisoner of having suicidal intentions, and the prisoner shall be placed under special observation.”
56. Health care within prisons was also governed by Standing Order 13, which defined the responsibilities and duties of the members of a prison health care team. Paragraph 31 provided:
“The initial medical assessment of all prisoners to the health care centre on or shortly after reception into prison, or as a result of concern about their mental state, should include consideration of special arrangements needed for their supervision to prevent attempts to harm themselves or commit suicide. Where it is considered that special supervision is medically indicated the medical officer will order supervision in one of the following forms:
(a) continuous supervision, in which the prisoner is observed by a designated officer who remains constantly in his or her presence; or
(b) intermittent supervision in which the prisoner is observed by a designated officer at intervals of not more than 15 minutes.”
57. The Prison Service also issued its own guidelines. At the relevant time, these were in the form of Circular Instruction 20/89 providing guidance, inter alia, relating to staff responsibilities, action on reception, referral and assessment during custody and preventative measures in respect of prison suicides. Circular Instruction 20/89 defined the task of the Prison Service as being
“to take all reasonable steps to identify prisoners who are developing suicidal feelings; to treat and manage them in ways that are humane and most likely to prevent suicide; and to promote recovery from suicidal crisis”.
The central element of this system was the suicide referral form (F1997). Wing managers (senior prison officers) transmitted referrals to the prison medical officer who decided whether any suicide prevention measures should be taken. Following criticism by the Chief Inspector of Prisons in his report “Suicide and Self-Harm in Prison Service Establishments in England and Wales”, new guidelines were issued in 1994 – Instruction to Governors 1/1994. This required, inter alia, a specific Self-Harm/At Risk form (F2052SH) to be used where a prisoner was identified by any member of staff as needing special care due to the risk of suicide or self-harm. This enabled the observations of all personnel in contact with the prisoner to be recorded and was intended to provide a comprehensive and ongoing record of the prisoner’s state of mind. A case review by the key personnel involved in the prisoner’s care (for example, the senior medical officer, a governor grade and the senior wing officer) was to take place before the prisoner was taken off the Self-Harm/At Risk form.
58. Under sections 47 and 48 of the Mental Health Act 1983, any prisoner suffering from a serious mental illness might be transferred to a hospital for detention and treatment.
59. Rule 43 of the Prison Rules 1964, pursuant to which Mark Keenan was placed in segregation, required the prison governor to remove a prisoner from segregation in the event that a medical officer so advised on medical grounds. Rule 53(2) provided that no punishment in cellular confinement was to be imposed unless a medical officer had certified that the prisoner was in a sufficiently fit state of health.
60. There was no requirement under statute or the Rules for a prison to be staffed by a medical officer with psychiatric qualifications. The medical officer did have discretion to request a psychiatric opinion when considered appropriate (Rule 17).
61. In an article published in the British Medical Journal (April 2000, vol. 320, “Inpatient care of mentally ill people in prison: results of a year’s programme of semistructured inspections”), the medical and nursing inspectors of Her Majesty’s Inspectorate of Prisons stated, inter alia:
“The quality of services for mentally ill prisoners [fall] far below the standards in the National Health Service. Patients’ lives [are] unacceptably restricted and therapy limited. The present policy dividing inpatient care of mentally disordered persons between the prison service and the NHS needs reconsideration.”
62. Under the Prison Rules 1964, a prisoner could be confined in a prison’s segregation unit or punishment block under two provisions.
63. Under Rule 43, a governor had the power to segregate a prisoner where this appeared desirable for the maintenance of good order or discipline or in his own interests. This was limited to three days, after which any extension had to be authorised by a member of the Board of Visitors or the Secretary of State.
64. Under Rule 50(1)e, the governor had the power to punish a prisoner convicted of a disciplinary offence by ordering up to fourteen days’ cellular confinement in the punishment block.
65. The conditions of prisoners segregated in a prison’s punishment block have been considered by the Chief Inspector of Prisons and Lord Justice Woolf, who carried out an inquiry into the prison system.
In his 1985 report “A Review of the Segregation of Prisoners under Rule 43”, the Chief Inspector of Prisons commented:
“ ’Good order’ inmates were held in very restricted conditions ... They were usually located in the area of the prison called the segregation unit or punishment block, alongside inmates who were there under punishment ...They were generally subjected to much the same sort of regime as the prisoners under punishment, except that they were allowed a few extra privileges. They were locked up on their own in a cell for nearly the whole day; only coming out to have an hour’s exercise walking round a yard, to collect their meals, to empty their chamber pots and to have an occasional shower. These excursions perhaps helped to break the monotony but usually did not provide them with much social contact. Opportunities to talk with fellow inmates were very limited and their relationships with staff were often antagonistic or distant ... [paragraph 2.29]
... removal from association can involve the loss of various opportunities and advantages in addition to the obvious deprivation of human contact. The decision to segregate should therefore always be taken with care but especially so when the inmate concerned has not directly requested segregation. Accordingly, decisions to impose segregation on unwilling prisoners should be subject to particularly strong and effective safeguards.” (paragraph 3.4)
He added that segregation “can entail living under an impoverished and monotonous regime which may even be psychologically harmful”.
66. Lord Woolf, in his report “Prison Disturbances”, April 1990, Cm 1456, stated:
“While segregation under Rule 43 is not intended to be a punishment, the use of the Rule will almost invariably adversely affect the inmate who is made subject to it. In most establishments anyone segregated under Rule 43 will be subjected to regime restrictions very similar to those undergoing punishment.” (paragraph 12.267)
67. Although there is no obligation on the governor or Board of Visitors to consult a doctor before initiating segregation, the governor is obliged to discontinue it if so advised by a medical officer on medical grounds (Rules 17 and 18 of the 1964 Rules).
68. If a prisoner has a complaint in relation to the conditions of his imprisonment or an adjudication, he may use the “remedies and complaints” system.
69. If the complaint relates to conditions of detention and cannot be resolved informally, the prisoner may make a formal application which will be recorded and a senior member of staff will discuss the matter with the prisoner usually within two days. If the prisoner remains dissatisfied, he then completes a request/complaint form to be considered by the governor, who usually replies within seven days. The prisoner may then appeal to the Area Manager of the Prison Service.
70. A complaint about an adjudication is submitted immediately to the Area Manager.
71. In either case, if the prisoner is dissatisfied with the decision of the Area Manager he may make an application for judicial review or make a complaint to the Prison Ombudsman.
72. Since 1994, prisoners who have exhausted the internal complaints system appeal to the Prison Ombudsman, who may make recommendations to the Prison Service if he upholds a complaint. He cannot quash or overrule a Prison Service decision.
In his annual report for 1996, the Prison Ombudsman stated, in respect of the complaints system:
“3.6. ... the Ombudsman’s service – and indeed the Prison Service’s internal requests/complaints system – is working well with regard to complaints about relatively formal and non-urgent topics. Prisoners generally know the well-established procedures for dealing with grievances about disciplinary adjudications and property loss and are willing to wait while the somewhat lengthy complaint processes are worked through.
3.7. The situation is very different for most other categories of complaint. Assaults, refusal of temporary release, the imposition of closed visits ... all these are matters which prisoners want resolved immediately. They are also issues for which the request/complaints procedures may superficially appear to be inappropriate or issues which prisoners are afraid to raise with staff within the prison. Certainly, the relatively lengthy and formalised process of complaint to the governor (taking a week plus), an appeal to Headquarters (taking at least six months) and an Ombudsman’s investigation (taking up to three months and sometimes more) will not commend itself to a disaffected prisoner wanting immediate redress.”
73. Case-law establishes that the High Court enjoys jurisdiction to grant judicial review of a decision either to segregate a prisoner pursuant to Rule 43 of the Prison Rules 1964 or to punish him pursuant to Rule 50 (R. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58). The court would review the matter in accordance with the well-established principles of administrative law, namely, whether the decision was perverse or irrational, whether the decision was made by reference to irrelevant factors or without regard to relevant factors, or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
74. A prisoner able to prove that his conditions of confinement have caused him injury, physical or psychiatric, resulting from the negligence of the prison authorities may claim an award of damages. If a prisoner is assaulted, he may maintain an action for assault, even in the absence of proof of physical injury. Damages may be awarded for any indignity or humiliation suffered, while exemplary damages may be awarded where the court concludes that there has been “oppressive, arbitrary or unconstitutional action by the servants of the government” (Rookes v. Barnard [1964] Appeal Cases 1226).
75. An action for the tort of misfeasance in public office may also be maintained if there has been a deliberate or dishonest abuse by a public officer through the purported exercise of a power otherwise than in an honest attempt to perform the relevant function. It includes performance of an act which the official has no power to perform with the object of injuring the claimant or where he knew he had no authority to perform it and actually foresaw that it could cause harm to the claimant or an identifiable class to whom the claimant belonged. “Harm” is not limited to physical or psychiatric damage.
76. Following the death of a prisoner and regardless of the cause, an inquest must be held pursuant to section 8(1)c of the Coroners Act 1988. Such inquests must be held with a jury (section 8(3)a). The coroner is the independent judicial officer charged with inquiring into deaths of various categories. His duties have been judicially defined:
“It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.” (R. v. North Humberside Coroner, ex parte Jamieson [1995] Queen’s Bench 1 (Court of Appeal) 26C)
77. Rule 20 of the Coroner’s Rules allows the parent of a deceased person to examine witnesses at an inquest either in person or through counsel or a solicitor. There is, however, no legal aid for representation at inquests. Nor at the time of the inquest in this case was there any right to disclosure of documents.
78. Under section 11(5)b of the Coroner’s Act 1988 and Rule 36 of the Coroner’s Rules, proceedings and evidence at an inquest must be directed solely to ascertaining
– who the deceased was;
– where the deceased came by his death;
– when the deceased came by his death;
– how the deceased came by his death.
No verdict may, however, be framed in such a way as to appear to determine any question of the criminal liability of a named person or civil liability.
79. The scope of an inquest has been described judicially as follows:
“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death.
... I further consider that [previous judgments] make it clear that when the Broderick Committee stated that one of the purposes of an inquest is ‘to allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v. the Coroner for North Humberside and Scunthorpe, ex parte Roy Jamieson, April 1994, unreported)
“The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and Others (1994) 158 Justice of the Peace 357)
“... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial ...
It is well recognised that a purpose of an inquest is that rumour may be allayed; But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner, ex parte Thompson (1982) 126 Solicitors’ Journal 625)
80. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.
81. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent on the deceased to recover damages for the loss of support; the scheme is compensatory and, save for the sum of 7,500 pounds sterling for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses.
82. According to the case-law, the common law imposes a duty of care on prison authorities in respect of those in their custody. The prison authorities have a duty to exercise reasonable care in the prevention of injury and harm and a duty to provide medical care. This duty extends to the protection of a mentally ill prisoner against committing suicide. In Kirkham v. the Chief Constable of Greater Manchester [1989] 3 All England Law Reports 882, the custodial authority was held liable for failing to prevent a suicide.
In Commissioner for the Police for the Metropolis v. Reeves [1999] 3 Weekly Law Reports 283, concerning the claims of the deceased’s spouse under the Fatal Accidents Act, the House of Lords confirmed that even in the case of a prisoner of apparently sound mind the authorities remain liable for a negligent failure to prevent his suicide, although in such a case the liability is shared with the deceased because of his voluntary act. Respect for personal autonomy did not preclude that steps be taken to “control a prisoner’s environment in non-invasive ways calculated to make suicide more difficult” (p. 369A-B).
As regards the standard of care, in Knight v. Home Office [1990] 3 All England Law Reports 243, which concerned, inter alia, whether a continuous as opposed to a fifteen-minute watch should have been in place on a mentally ill prisoner at the relevant time, Pill J held that the duty to take reasonable care of such a prisoner
“should not and does not expect the same standard across the entire spectrum of situations, including the possibility of suicide, as it would in a psychiatric hospital outside prison. The duty is tailored to the act and functions performed.”
However, more recently, in Brooks v. Home Office (The Times, 18 February 1999), the High Court held in relation to the provision of ante-natal care to a pregnant woman:
“We are concerned with a remand prisoner, a high risk pregnancy. I cannot regard Knight as authority for the proposition that the plaintiff should not, while detained in Holloway, be entitled to expect the same level of ante-natal care, both for herself and her unborn infants, as if she was at liberty, subject of course to the constraints of having to be escorted and, to some extent, movement being retarded by those requirements.”
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ITEMID: 001-101838
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF OLKHOVIKOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1944 and lives in Kherson.
5. In 1996-1997 the applicant’s neighbours, Mr and Mrs P., who lived on the second floor of a two-storey dwelling house, reconstructed their two flats. As a result of this, the applicant’s flat on the first floor of the same house and the property in it were flooded and damaged.
6. On 10 September 1997 the applicant lodged a civil claim with the Komsomolskyy Court against Mr and Mrs P., by which she asked it to declare unlawful the reconstructions they had made, sought elimination of obstacles in using the house and claimed damages. Subsequently, the applicant lodged a similar claim against the local authorities, by which she also sought refutation of information published in a local newspaper concerning the applicant’s alleged failure to pay for the utilities and claimed damages in this respect.
7. Between 9 September 1998 and 24 April 1999 the proceedings were suspended pending the outcome of the applicant’s criminal complaint concerning the matter, which was eventually dismissed as unsubstantiated.
8. On 28 August 2001 the court discontinued the proceedings in respect of Mr P. because of his death.
9. Following two reconsiderations of the case, on 31 August 2005 the court allowed in part the applicant’s claim, declared the reconstructions made by Mrs P. unlawful, obliged her to repair the house and the applicant’s flat and ordered Mrs P. to pay the applicant certain amounts in compensation. The court rejected, as unsubstantiated, the applicant’s claim against the local authorities.
10. On 12 December 2005 and 24 January 2008, respectively, the Kherson Regional Court of Appeal and the Kirovograd Regional Court of Appeal (the latter court acting as a court of cassation) upheld the above judgment. On 14 April 2008 the applicant was served with a copy of the decision of 24 January 2008.
11. According to the Government, in the course of the proceedings the applicant amended or specified her claims on six occasions and on one occasion she requested the courts to extend the time-limit for lodging her appeal. Nineteen hearings were adjourned upon the applicant’s request or due to her failure to attend them. Thirty-five hearings were adjourned mainly due to the respondents’ or third parties’ failure to attend them and because of the absence of the judge. Three expert examinations were ordered in the course of the proceedings and lasted for about three months (in June-July 1999 and in May 2004).
12. The applicant disagreed that she had been responsible for the adjournment of some of the hearings mentioned by the Government.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105178
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZYLKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1952 and lives in Vilnius, Lithuania.
6. The applicant, a retired serviceman, considered himself eligible to receive child allowance payable by the Russian Federation to parents with minor children.
7. On 15 January 2003 he applied for the allowance to the social security division of the embassy of the Russian Federation in Vilnius, Lithuania.
8. On 20 January 2003 the social security division refused his request. They noted that the applicant, being a permanent resident of Lithuania, was not eligible to receive the allowance.
9. On an unspecified date the applicant challenged the decision of the social security division. He lodged a complaint before the Presnenskiy District Court of Moscow.
10. On 29 April 2003 the District Court dismissed the applicant’s complaint without consideration on the merits. In particular, the court ruled as follows:
“This statement of claim cannot be admitted for consideration by the Presnenskiy District Court of Moscow given that it was submitted in contradiction of the rules of procedure on jurisdiction ... Pursuant to the applicable legislation ..., the claims are to be submitted to the court with jurisdiction over the region where the claimant resides or where the State authority ... whose action is challenged is located.
Pursuant to the [applicant’s] statement, the respondent authority in the case is the social security division of the Embassy of the Russian Federation in the Lithuanian Republic whose registered address is in [Vilnius, Lithuania], that is, a region outside the jurisdiction of the Presnenskiy District Court of Moscow.
The applicant resides in [Vilnius, Lithuania], which is also not within the jurisdiction of the Presnenskiy District Court of Moscow.
Having regard to the fact that [the applicant] has no ground to introduce his statement of claim before the Presnenskiy District Court of Moscow and in compliance with Articles 24-27 and 254 § 2 of the Russian Code of Civil Procedure, the court hereby
RULES
that the statement of the claims be returned to [the applicant] and he be advised to lodge it before the relevant court in Vilnius, Republic of Lithuania.”
11. On 30 July 2003 the Moscow City Court upheld the decision of 29 April 2003 on appeal reiterating the reasoning of the District Court.
12. The Russian Code of Civil Procedure (Article 254) provides that the claim against a State authority should be submitted to a court with territorial jurisdiction over the claimant’s place of residence or the location of the State authority in question.
13. The Russian Code of Civil Procedure (Article 28) provides that the claim against a legal entity should be submitted to a court with territorial jurisdiction over the legal entity in question.
14. The Russian Civil Code (Article 54) defines the location of a legal entity as the place of its incorporation which is to be indicated in its founding documents.
15. Pursuant to the Regulations on the Embassy of the Russian Federation as approved by Decree no. 1497 of the President of the Russian Federation of 28 October 1996, the embassy of the Russian Federation is to be established by the Decision of the Government of Russia in accordance with the Decree of the President of Russia. The embassy is a legal entity which forms part the system of the Ministry of Foreign Affairs of the Russian Federation.
16. As regards the immunity from jurisdiction of diplomatic agents, the Vienna Convention on Diplomatic Relations provides as follows:
Article 31
“1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
Article 32
1. The immunity from jurisdiction of diplomatic agents ... may be waived by the sending State.
2. Waiver must always be express...”
17. Pursuant to the Agreement entered into by the Russian Federation and Lithuanian Republic on 18 November 1993 (Article 2), it is for the social security division of the Russian embassy in Lithuania to deal with the questions pertaining to the payment, recalculation and entitlement to pension and social benefits for retired Russian servicemen. The relevant funding shall be effected through the Russian embassy in Lithuania.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107145
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: JANCEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicant, Mr Dafče Jančev, is a Macedonian national who was born in 1951 and lives in the village Dolni Disan, Negotino. He was represented before the Court by Mr M. Mančev, a lawyer practising in Kavadarci, the former Yugoslav Republic of Macedonia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and Mr Dz.I. (“the plaintiff”) are neighbours whose plots of land are adjacent. On 16 February 2008 the applicant constructed a wall, a meter long and 90 cm high, and put three concrete bricks on a passage that the plaintiff used to access his property. The plaintiff brought a civil action requesting the Negotino Court of First Instance (“the first-instance court”) to establish that the applicant disturbed his possession (смеќавање на владение) and to order reinstatement in previous state.
On 10 November 2008 the first-instance court allowed the plaintiff’s claim and ordered the applicant to demolish the wall and remove the bricks. The transcript of a hearing held on that date did not contain any indication that the decision or its operative provisions were delivered.
The applicant appealed arguing inter alia that the first-instance court had not pronounced the decision publicly, as required under section 324 of the Civil Proceedings Act (see “Relevant domestic law” below). He further complained that that failure was incompatible with Article 6 of the Convention.
On 5 February 2009 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. As regards the applicant’s arguments that the first-instance court’s decision had not been pronounced publicly, the court stated that it was a procedural flaw that did not affect the validity of the decision. This decision was served on the applicant on 9 March 2009.
Section 324 § 3 of the Civil Proceedings Act of 2005 provides that a decision is delivered immediately after the public hearing and is pronounced publicly by a single judge or presiding judge of the adjudicating panel.


ITEMID: 001-101992
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BAGHATURIA v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Tengiz Baghaturia, is a Georgian national who was born in 1953 and lives in Tbilisi. He was represented before the Court by Ms Sophio Japaridze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a member of a private housing cooperative (“the cooperative”). Under an agreement of 30 May 1999, the cooperative undertook to deliver to the applicant, in exchange for a monetary contribution, a refurbished apartment of 200 square metres on the first floor of a block of flats which was to be constructed in the centre of Tbilisi.
On 12 December 2003 the construction of the block was terminated, but the cooperative refused to fulfil its contractual obligation vis-à-vis the applicant, excluding him from the membership. The applicant then sued the cooperative, claiming the property title to a flat corresponding to the conditions stipulated in the agreement of 30 May 1999 (“the disputed flat”). He also sought an injunction barring the cooperative from registering the flats in the newly constructed block, pending the resolution of his dispute.
In an interlocutory decision of 16 December 2003, the Vake-Saburtalo District Court in Tbilisi allowed the applicant’s request for an injunction, ordering the Land Registry to attach all the flats in the block, pending the final determination of the dispute. However, that decision was overturned, on the basis of the cooperative’s appeal, by the same District Court on 17 September 2004. The attachment record was consequently deleted from the Land Registry, and the flats in the block were immediately distributed, with property rights, among the members of the cooperative.
The applicant then appealed against the decision of 17 September 2004, and on 26 November 2004 the Tbilisi City Court delivered another interlocutory decision, confirming the initial attachment order of 16 December 2003. The decision of 26 November 2004 became binding.
On 16 February 2005 the applicant brought a court action against the competent bailiffs from the Tbilisi enforcement office and the Land Registry, requesting those authorities to enforce the interlocutory decision of 26 November 2004 and to pay him damages for the delay in its enforcement (“the action of 16 February 2005”).
Initially, the Didube-Chughureti District Court on 8 April 2005 dismissed the action of 16 February 2005 as manifestly ill-founded. However, the applicant appealed, explaining that the essence of his claim was to restore the situation which had existed prior to the lifting of the attachment order on 17 September 2004. During the appellate proceedings, the applicant further specified that he aimed at the annulment of those records in the Land Registry which had confirmed the distribution of the flats between the cooperative members on the first floor of the block. In addition, the applicant dropped his claim for damages.
On 5 December 2005 the Tbilisi Court of Appeal allowed the applicant’s appeal against the decision of 8 April 2005, ordering the Land Registry and the bailiffs to annul the cooperative members’ property titles to the flats located on the first floor of the block. In its decision, the appellate court duly noted that the applicant had withdrawn his claim for damages.
As neither the applicant nor the respondent authorities lodged a cassation appeal against the decision of 5 December 2005, it became binding and, as disclosed by the case file, was later enforced by the authorities.
In a judgment of 12 February 2004, the Vake-Saburtalo District Court allowed the applicant’s civil action on the merits, ordering the cooperative to transfer the disputed flat to the applicant’s ownership.
The judgment of 12 February 2004 was fully upheld by the Tbilisi Regional Court and the Supreme Court of Georgia on 4 November 2004 and 5 May 2005 respectively, becoming binding on the latter date.
On 10 June 2005 the Tbilisi City Court issued to the Tbilisi enforcement office a writ for the enforcement of the judgment of 12 February 2004.
On 21 June 2005 the bailiff from the Tbilisi enforcement office, who became in charge of the applicant’s case, proposed to the cooperative to abide voluntarily by the judgment of 12 February 2004. The President of the cooperative, Mr G., replied, on the following day, that all the flats on the first floor of the block had already been alienated to third parties.
On 7 July 2005 the bailiff again requested the cooperative to abide by the judgment of 12 February 2004, on pain of the initiation of criminal proceedings against Mr G. under Article 381 of the Criminal Code. The reiterated proposal was left unanswered by the debtor, and on 7 August 2005 the bailiff transmitted the case to an investigative unit of the Ministry of Justice, the agency in charge of enforcement proceedings, for more drastic measures. Consequently, on 23 August 2005 a criminal case was opened against Mr G. for the obstruction of the enforcement.
On 19 July 2006 the applicant complained to the Enforcement Department of the Ministry of Justice (“the Enforcement Department”), about the bailiff’s failure to recover the judgment debt of 12 February 2004. The applicant noted that, after the records of the third parties’ property titles to the relevant flats had been removed from the Land Registry, there was no impediment to the transfer of the disputed flat to his ownership.
In a letter of 7 August 2006, the Enforcement Department informed the applicant of the measures which had been undertaken to compel the cooperative to abide by the judgment of 12 February 2004. The authority also invited the applicant, in the light of the difficulties associated with the transfer of the disputed flat, to consider the possibility of an adjustment in the modalities of the enforcement, as envisaged by the relevant enforcement legislation. That proposal was left unanswered by the applicant.
Subsequently, an extensive exchange of correspondence, bearing on the method and various factual details of the possible transfer of the disputed flat to the applicant, took place between the bailiff and Mr G. However, those negotiations yielded no result, and on 2 August 2007 the Tbilisi City Court ordered, within the framework of the criminal proceedings, Mr G.’s dismissal from the post of President of the cooperative.
On 22 August 2007 the bailiff requested all the members of the cooperative to reach an agreement on the transfer of the disputed flat to the applicant, on pain of the initiation of criminal proceedings under Article 381 of the Criminal Code against each of them.
On 19 October 2007, brokered by the bailiff, Mr G. made a friendly settlement proposal to the applicant. Notably, the former President of the cooperative expressed his readiness to cede his own apartment free of charge to the applicant, in exchange for the latter’s waiver of any further claims over the disputed flat. The applicant did not accept that proposal.
According to the case file, the judgment of 12 February 2004 has not been enforced to date.
The non-enforcement of a binding judgment or the obstruction of its enforcement by, inter alia, executives of a corporation or other organisation was a criminally liable offence, prescribed by Article 381 of the Criminal Code.
Pursuant to section 18 of the Enforcement Proceedings Act of 16 April 1999, an appeal against any procedural decision, action or omission of an agent of the enforcement authority (bailiff) lay to a court.
Pursuant to Articles 207-209 of the General Administrative Code, the State could be sued for the harm done by an action or omission of any public servant. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary.
Article 1005 § 1 of the Civil Code stated that damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.