ITEMID: 001-90398
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BULLEN AND SONEJI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicants were born in 1946 and 1962 respectively and live in London. They were charged with involvement in a money laundering scheme together with a third co-accused, Mr E.
5. On 24 March 2000 the second applicant pleaded guilty at a Crown Court to conspiracy to launder the proceeds of criminal conduct contrary to section 1 of the Criminal Law Act 1977. On 3 April 2000 the first applicant pleaded guilty to the same offence.
6. On 21 June 2000 the prosecution served notice under section 71(1)(a) of the Criminal Justice Act 1988 (CJA 1988, see paragraphs 40-41 below), as amended by the Proceeds of Crime Act 1995, indicating their intention to seek confiscation orders to recover the proceeds of the applicants’ criminal conduct.
7. On 29 June 2000 counsel for the second applicant requested an early confiscation hearing and counsel for the co-accused, Mr. E., requested a confiscation hearing in September. The trial judge pencilled in a date on the week beginning 30 October 2000, as that was the first occasion on which he would be available. The trial judge further directed that the date would be considered again on the proposed date for sentence, 18 August 2000.
8. On 18 August 2000 the second applicant was sentenced to four and a half years’ imprisonment and the first applicant was sentenced to six years’ imprisonment. Prior to sentence the confiscation hearing was formally postponed until after passing sentence and was fixed for 30 October 2000, outside the six-month period required under section 72A of the CJA 1988.
9. On 30 October 2000 the case was listed for the confiscation hearing with a time-estimate of five working days. The applicants objected that the court lacked jurisdiction to hear the confiscation proceedings on the grounds that more than six months had elapsed since their convictions and that the judge had not considered whether there were “exceptional circumstances” warranting the imposition of the confiscation orders outside the statutory time-limit, as required by section 72A (3) of the CJA 1988, as amended (see paragraph 35 below).
10. On 3 November 2000 the trial judge held that he had jurisdiction to hear the confiscation proceedings. It was then agreed by the parties that the confiscation proceedings should be adjourned to await the outcome of a similar case which was due to be heard by the Court of Appeal, R v Steele and Shevki. The confiscation proceedings were adjourned until 5 February 2001.
11. On 21 November 2000 Mr E. was granted leave to appeal against his conviction. On 24 November 2000 both the applicants’ applications for leave to appeal against sentence were refused by a single judge of the Court of Appeal.
12. On 14 December 2000 the Court of Appeal delivered its judgment in R v. Steele and Shevki ([2000] EWCA Crim 70). It found that although adjournments beyond the six-month period prescribed by statute should be avoided, exceptional circumstances such as the unavailability of a judge would not deprive a subsequent confiscation order of its validity.
13. On 31 January 2001 the confiscation proceedings were listed again for mention. Renewal of argument in relation to the Crown Court’s jurisdiction to hear the confiscation proceedings, in light of the Court of Appeal’s judgment in R v. Steele and Shevki, was listed for 8 and 9 March 2001. Following the hearing on 8 March 2001, the judge held that the court retained a common law power to adjourn beyond the statutory six-month time-limit in compelling circumstances such as where there was an illness or the judge was unavailable. In his opinion a statutory postponement citing exceptional circumstances was required only where the purpose of the postponement was to gather further information, and not in the instant case where the issue had been the unavailability of the judge.
14. On 26 and 27 March 2001 the Court of Appeal heard and dismissed Mr E.’s appeal against conviction. On 30 March 2001 the confiscation proceedings were listed again for mention before the trial judge, to notify him of the result of Mr E.’s appeal. At this stage Mr E. was seeking leave to appeal to the House of Lords and was awaiting the decision of the Court of Appeal on his application for leave to appeal. The substantive hearing of the confiscation hearing was again adjourned.
15. On 2 May 2001 the Court of Appeal refused Mr E.’s application for leave to appeal to the House of Lords and declined to find that a question of law of general public importance was involved in the decision.
16. On 12 June 2001 the confiscation proceedings were listed for directions and with the agreement of all parties, the hearing was fixed to begin on 15 October 2001.
17. On 20 September 2001 the confiscation proceedings were again listed for mention at the request of Mr. E. who sought to adjourn the confiscation hearing that was fixed for 15 October 2001.
18. On 26 September 2001 the confiscation proceedings were again listed to consider Mr E.’s application for adjournment. The proceedings were adjourned to 28 January 2002 with a time estimate of three weeks.
19. On 28 January 2002 the Crown Court imposed a confiscation order on the second applicant in the amount of GBP 75,350, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of twelve months’ imprisonment to be served in default.
20. On 4 February 2002 the second applicant lodged an application for leave to appeal, challenging the confiscation order on the ground that the Crown Court had no jurisdiction to make it because of the lapse of the six-month period provided by section 72A(3) of the CJA 1988.
21. On 7 February 2002 the Crown Court imposed a confiscation order on the first applicant in the sum of GBP 375,000, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of 21 months’ imprisonment to be served in default.
22. On 25 February 2002 the first applicant lodged an application for leave to appeal challenging the confiscation order on the same grounds as the second applicant (see paragraph 20 above).
23. On 12 December 2002 the second applicant obtained a Certificate of Inadequacy from the High Court. This entitled him to return to the Crown Court to seek a reduction of the confiscation order.
24. On 4 February 2003 the second applicant’s case was listed before the Crown Court and the confiscation order was reduced to GBP 30,284, taking into account the Certificate of Inadequacy.
25. On 20 June 2003 the Court of Appeal allowed the applicants’ appeals and quashed the confiscation orders and default sentences of imprisonment. They noted that on 29 June 2000, defence counsel for the second applicant and the co-accused Mr. E. had requested an early hearing at the Crown Court. However, the earliest date that the trial judge would be available was the week beginning 30 October 2000. That date was pencilled in by the trial judge, even though it was “more than four months away”. The Court of Appeal considered that, given the importance attached by Parliament and the courts to the link between confiscation orders and sentencing, a high degree of judicial scrutiny was required before finding exceptional circumstances to justify the imposition of a confiscation order outside the six-month time-limit. In the present case, there was no evidence of any enquiry from 24 March 2000 (when the second applicant was the first to plead guilty) onwards into whether a space could be found for the confiscation hearing during the six-month period.
26. Furthermore, on 3 November 2000, the trial judge had acknowledged with “admirable candour” when finding that he had jurisdiction to hear the confiscation proceedings outside the six-month time-limit that “no enquiry was made of the (applicants) as to the postponement” when the decision to hold the confiscation hearing in the week beginning 30 October 2000 was finally confirmed on 18 August 2000. Neither had there been any analysis of any factors which might amount to exceptional circumstances. The trial judge had also “candidly acknowledged more than once” that there were no exceptional circumstances. The Court of Appeal ultimately found that the failure to address the question as to whether the circumstances could properly be described as exceptional and to make a finding to that effect was fatal to the upholding of the confiscation orders. Though in principle confiscation orders should not be quashed for mere defects in procedure, if the statutory requirement of exceptional circumstances was to be more than a “mere incantation”, enquiry into the circumstances and the possibility and feasibility of a timely hearing were required.
27. On 30 July 2003 the Court of Appeal certified that a point of law of general public importance was involved in the decisions.
28. On 1 April 2004 the House of Lords granted the prosecution leave to appeal against the decisions of the Court of Appeal.
29. On 21 July 2005 the House of Lords reversed the decisions of the Court of Appeal and ordered the latter to re-impose the confiscation orders in respect of both applicants.
30. The House of Lords observed that the core problem before it was whether, as a matter of statutory construction, failure to comply with a statutory time-limit would have the effect of invalidating an act. The fact that Parliament cast statutory requirements in imperative form without expressly specifying the consequences of a failure to comply had caused difficulty and had been the source of a great deal of litigation over the preceding 130 years. A distinction had first evolved between mandatory and directory requirements; where a requirement was mandatory, a failure to comply had the effect of invalidating the act in question but where a requirement was merely directory, a failure to comply did not invalidate the act. Over the years, a further distinction had been made between two types of directory requirements: requirements of a purely regulatory character, where a failure to comply would never invalidate an act, and requirements where a failure to comply would not invalidate an act provided that there was substantial compliance. In London & Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 WLR 182, 189E-190C, however, Lord Hailsham had emphasised that it was within the courts’ inherently discretionary jurisdiction to determine the nature of a particular statutory requirement and to examine the consequences of non-compliance before determining whether Parliament had intended total invalidity. In the later case of Wang v. Commissioner of Inland Revenue [1994] 1 WLR 1286, the Privy Council followed and applied the dictum of Lord Hailsham in London and Clydeside Estates (cited above). The House of Lords also took into consideration a number of cases in which the Court of Appeal had adopted the same approach, and parallel developments in the courts of New Zealand, Australia and Canada.
31. In the present case, the House of Lords considered that the prime purpose behind the statutory provision for confiscation orders was the recovery of any financial benefit that an offender might have obtained from his criminal conduct. The Law Lords rejected the applicants’ argument that, given the criminal law context, a strict approach to the construction of section 72A of the CJA 1988 should be adopted and instead applied a teleological approach. They noted that section 71(1) of the CJA 1988 imposed a positive duty to proceed with confiscation proceedings and that the time limits under section 72A were linked to the date of conviction rather than sentence. This was considered to be evidence that Parliament’s intention was the early disgorgement of an offender’s criminal gains. Though Parliament had envisaged that courts would make confiscation orders before sentencing, unless they exercised their postponement power under section 72(A)(1), it was of some significance that Parliament considered it more important that a confiscation order should be made than that it should be made before the defendant was sentenced. Though no common law power to adjourn existed, Parliament could not have intended to disable a court from making a confiscation order after sentence merely because the time-limits were not strictly adhered to.
32. In the present case, the Crown Court had postponed its final decision on confiscation orders in good faith. The prejudice to the applicants was not significant and was outweighed by the countervailing public interest in not allowing convicted offenders to escape confiscation for what were no more than bona fide errors in the judicial process. In any event, there would always be the safeguard of judicial review should there be an apparent abuse of process.
33. In October 2005 the Court of Appeal re-imposed the confiscation orders and sentences of imprisonment in default on the applicants.
VIOLATED_ARTICLES: 6


ITEMID: 001-113492
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CÎRDEI v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Filaret Cîrdei, is a Romanian national who was born in 1931 and lives in Milişăuţi, Romania.
2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs.
4. On 23 January 1997 C.N. brought proceedings against the applicant seeking to recover his property consisting of 2,600 sq. m of land which the applicant had occupied.
5. By a final judgment of 26 November 2002 the Suceava Court of Appeal allowed C.N.’s action in part and ordered the applicant to vacate 1,300 sq. m of C.N.’s land.
6. On 26 March 2003 a bailiff enforced the judgment of 26 November 2002 and C.N. was given possession of the land.
7. On an unspecified date C.N. brought criminal proceedings against the applicant for contempt of court in relation to the court judgment of 26 November 2002, on the basis of the fact that the applicant continued to plant crops on the 1,300 sq. m of land.
8. By a final judgment of 5 February 2004 the Rădăuţi District Court convicted the applicant of contempt of court and sentenced him to a suspended sentence of six months’ imprisonment. The court again ordered the applicant to vacate the 1,300 sq. m of C.N.’s land.
9. On 7 April 2005 a bailiff enforced the judgment of 5 February 2004 and restored C.N.’s possession of the land.
10. On an unspecified date in 2005 C.N. brought a second set of criminal proceedings against the applicant for contempt of court in relation to the court judgment of 5 February 2004, as the applicant was continuing to plant crops on the 1,300 sq. m of land.
11. By a final judgment of 18 October 2006 the Suceava Court of Appeal convicted the applicant of contempt of court and imposed on him a criminal fine of 1,000 lei (RON) (approximately 284 euros (EUR)). It also cancelled the suspension of the sixmonth prison sentence the applicant had received on 5 February 2004 and ordered the applicant’s imprisonment for six months. Moreover, it awarded C.N. RON 1,284 (approximately EUR 363) in respect of civil damages. As regards the applicant’s claim that he had not been assisted by a lawyer during the criminal investigation and before the firstinstance court, the court held that although the applicant had been informed of his right to legal assistance as provided for by the applicable rules of criminal procedure, he had waived his right to a lawyer, stating that he would employ the services of a lawyer for the trial if he needed to. Moreover, the court held that in a case such as that involving the applicant, the domestic law did not require the mandatory appointment of a lawyer by the court.
12. It does not appear from the evidence in the file that the applicant asked for a courtappointed lawyer, or that he asked to be allowed to retain a lawyer of his own choice, either during the criminal investigation or before the first-instance court.
13. Between 21 February 2005 and 3 October 2006 the applicant was hospitalised in several hospitals, including the Rădăuţi and Suceava County Hospitals, where he was diagnosed and treated for hypertension and serious heartrelated conditions. He was recommended to rest and was prescribed antibiotics, aspirin and anticoagulants.
14. On 19 October 2006 the Rădăuţi District Court ordered the applicant’s detention following the sentence imposed by the Suceava Court of Appeal on 18 October 2006.
15. On 25 October 2006 the applicant was detained and taken to Suceava police station. He was 75 years old at the time.
16. On 2 November 2006 the applicant was transferred to Botoşani Prison.
17. On 3 November 2006 the applicant informed the prison guards that he felt ill, and he was taken to the Botoşani Prison doctor. The said doctor prescribed him some medication, which was brought to his cell every morning and evening.
18. On 10 November 2006 he was transferred back into the custody of the Suceava police because he had been summoned to appear before the domestic courts in respect of criminal proceedings opened against him for destruction of property. Because of his worsening medical condition, he asked to be taken to a doctor, but his request was allegedly refused. On 17 November 2006 he was transferred back to Botoşani Prison, where he was placed in a cell with five other inmates. On an unspecified date one of the detainees started recounting stories of alleged rape incidents that had taken place in the prison, which scared the applicant and caused him to feel unwell. He was taken to the Botoşani Prison doctor and was provided with treatment for his condition. However, his state of health did not improve.
19. On 2 December 2006 the applicant suffered a heart attack and was transferred to the Botoşani County Hospital, allegedly in the back of a car with a plank of wood for a seat. At the hospital he was given an injection and some medication, and was kept under observation for two days.
20. As his medical condition did not improve, the doctor at the Botoşani County Hospital recommended that the applicant be transferred to Bucharest.
21. On 4 December 2006 he was transferred to Bucharest by car, travelling for eleven hours over a distance of 500 km (from 10 a.m. to 9 p.m.). He was taken to the Jilava Prison Hospital, where he was left to wait in the car for half an hour. On the same date he was transferred to the C.C. Iliescu Cardiology Hospital in Bucharest because he could not be treated in Jilava. The applicant further claims that before leaving Jilava he lost consciousness.
22. On 5 December 2006 the applicant’s diagnosis of acute myocardial infarction was confirmed and he underwent heart bypass surgery and was fitted with a pacemaker.
23. On 11 December 2006 the applicant was discharged from the C.C. Iliescu Cardiology Hospital and transferred back to the Jilava Prison Hospital.
24. Following his release from prison on 20 December 2006, the applicant was allegedly taken to hospital several times for urgent medical attention as a result of his slow recovery from the myocardial infarction and the subsequent surgery. He submitted four medical letters issued between February 2007 and 19 May 2008 concerning his medical condition. The letters were issued by the private practices of doctors B.L. and G.I., a cardiologist and a respiratory specialist respectively. The letters confirmed the applicant’s post-surgical diagnosis and prescribed medication. None of the letters contain any information indicating that urgent medical treatment or hospitalisation was required by the applicant.
25. In a letter of 1 April 2009 (received by the Court on 6 April 2009) the applicant informed the Court for the first time that because of a lack of funds, the Jilava Prison Hospital could not provide him with Plavix, a medicine that he needed to take on a daily basis to help with the assimilation of his pacemaker and to prevent future heart attacks. He further stated that he had been asked to buy the drug himself.
26. On 27 October 2006 the applicant was examined in detention by a doctor. According to the entry on his medical chart for that day he was diagnosed with heart problems, inter alia. Moreover, on 3 and 22 November 2006 the applicant was examined by the Botoşani Prison doctor and was prescribed medicines for his condition, including aspirin, antibiotics, simvastatine and anticoagulants.
27. On 10 November 2006 the domestic authorities approved the applicant’s request for a doctor’s visit in order to obtain a prescription for medicines.
28. On 26 November 2006 the applicant underwent a medical examination in the Botoşani County Hospital. The medical note issued on the same date recorded that he had been provided with treatment for his condition and that he had been administered nitroglycerin. He was also recommended to rest.
29. On 4 December 2006 the applicant was discharged from the Botoşani County Hospital. His discharge papers issued on the same day stated that he had been hospitalised for acute myocardial infarction, and recorded that he had been provided with medical treatment for his condition. The discharge papers also stated that the applicant’s condition was stable, and recommended his transfer to the Jilava Prison Hospital because the applicant’s condition required him to be fitted with a pacemaker, a medical procedure that could not be performed in the region.
30. According to the information submitted by the Government, also supported by documents, the applicant was transferred from the Botoşani County Hospital to the Jilava Prison Hospital by ambulance on 4 December 2006. The ambulance left the Botoşani County Hospital at 12.20 p.m. and arrived at the Jilava Prison Hospital at 5.50 p.m. Because the Jilava Prison Hospital lacked the equipment required for the applicant’s treatment, at 7 p.m. on the same day he was transferred to the C.C. Iliescu Cardiology Hospital, where he arrived at 7.30 p.m. For the entire duration of his journey the applicant was accompanied by doctor L.M., a specialist in internal medicine, and by nurse L. He was transported on a stretcher, his condition was monitored and he was provided with oxygen and medication. He remained conscious and his condition was stable.
31. On 11 December 2006 he was transferred to the Jilava Prison Hospital from the C.C. Iliescu Cardiology Hospital in Bucharest for monitoring and treatment. According to his discharge papers from the C.C. Iliescu Cardiology Hospital he had undergone heart surgery and angioplasty with stent placement, and was diagnosed with, inter alia, recent acute coronary syndrome, second- and thirddegree atriumventricular block (type one, reversible), a high risk of severe arterial hypertension, class 3 cardio insufficiency, prostate adenoma, and acute kidney failure. He was recommended to rest and to follow a lowsodium diet. Moreover, he was prescribed several medicines, including one capsule of Plavix per day for nine months, which was available free of charge for patients in his condition.
32. During his hospitalisation in the Jilava Prison Hospital he was provided with the required medical treatment for his condition as prescribed by the C.C. Iliescu Cardiology Hospital, including the medicine Clopidogrel (Plavix), and his condition had improved by the time he was discharged from the Jilava Prison Hospital on 20 December 2006.
33. Lastly, the applicant did not lodge any complaints in respect of the alleged inadequacy of the medical treatment received or of the transport conditions during his detention.
34. On 30 October 2006 the applicant retained the services of a lawyer and authorised him to bring proceedings before the domestic courts seeking his release from his custodial sentence on health grounds.
35. On 1 November 2006 the applicant brought proceedings before the Suceava District Court seeking his release on account of his age and medical condition.
36. On 3 November 2006 the applicant requested the court to bring forward the first hearing of his case scheduled from 6 December 2006, on account of his medical condition.
37. By an interlocutory judgment of 6 November 2006, the Suceava District Court allowed the applicant’s action and scheduled the first hearing of his case for 13 November 2006.
38. On 13 November 2006 the Suceava District Court raised of its own motion an objection in respect of its territorial jurisdiction, and declared the Rădăuţi District Court competent to deal with the applicant’s request for release on health grounds. It held that according to the applicable rules of criminal procedure only the firstinstance court which had sentenced the applicant, or the court having territorial jurisdiction over the place where the applicant was serving his prison sentence, could validly hear his application. And in the applicant’s case that was the Rădăuţi District Court that was competent on both counts.
39. On 7 December 2006 the applicant’s action seeking release on health grounds was lodged before the Rădăuţi District Court.
40. At a hearing on 12 December 2006, the Rădăuţi District Court ordered the Suceava Forensic Institute to produce an expert forensic report that would establish whether the applicant’s medical condition could be treated in a prison hospital.
41. By a final judgment of 19 December 2006, the Rădăuţi District Court allowed the applicant’s action and ordered the discontinuation of the applicant’s sentence pending his recovery. It held that according to the expert forensic report produced by the Suceava Forensic Institute on 13 December 2006, his condition following surgery would require three months’ specialist medical care and a special diet which could not be provided by a prison hospital.
42. On 20 December 2006 the applicant was released from prison.
43. On 1 March 2007, following media coverage, the applicant received a Presidential pardon in respect of the remainder of his prison sentence.
44. The relevant provisions of Law no. 275/2006 on the Serving of Prison Sentences, in force at the time of the events in the instant case, as well as those of the Romanian Code of Criminal Procedure concerning suspension of prison sentences (Articles 453 and 455), are described in Aharon Schwarz v. Romania, no. 28304/02, §§ 66-67, 12 January 2010.


ITEMID: 001-108374
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PEARSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Vincent A. De Gaetano
TEXT: 1. The applicant, Ms Jean Pearson, is a British national who was born in 1945 and lives in Shipley, the United Kingdom. She is represented before the Court by Ms Borrill, a solicitor practising in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, of the Foreign and Commonwealth Office.
2. The applicant’s daughter, Kelly Pearson (born in 1969), died on 10 November 1999.
3. Kelly Pearson had a history of mental health problems associated with alcohol and substance misuse.
4. In September 1999 five warrants against her were considered by a magistrates’ court. Sentencing was deferred (until January 2000) the conditions of which were that she lived with her mother in West Yorkshire, kept in touch with her probation officer (not amounting to formal probation supervision), accepted her treatment for drug abuse and did not commit further offences. She went to live with her mother in West Yorkshire. The facts set out below are taken from the documents submitted, including the transcript of the Inquest held on 25 April 2002 (paragraphs 13-18 below).
5. Kelly Pearson was seen by many health professionals from September 1999. A General Practitioner (“GP”, who treated her from September 1999) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness. A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long-standing substance abuse.
6. Because no recall notice had issued as regards one of the five warrants from the magistrates’ court Authority, in October 1999 British Transport Police officers circulated, in error, Kelly Pearson’s details on the Police National Computer (“PNC”) citing a failure to surrender to the warrant. In short, that warrant was, erroneously, now recorded as “outstanding” whereas it had been dealt with by the magistrates’ court in September 1999.
7. On 5 November 1999 Kelly Pearson was arrested in West Yorkshire for being drunk and disorderly. She was found guilty by a magistrates’ court on 6 November 1999 and a small fine was imposed.
8. During that process, a PNC search revealed the warrant erroneously described as outstanding. She was re-arrested on 6 November 1999 and, on 8 November 1999, transferred to London (Belgravia station), arriving at 16.20. The Police Custody Officer (“PCO”) obtained a copy of the “outstanding” warrant and approved her custody at 17.50. He asked her a number of standard questions including those to determine her state of health and well-being. She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition, illness or injury. Although she was acting appropriately and calmly, she had medication in her possession and the PCO referred her to the Forensic Medical Examiner (“FME”). The FME examined Kelly Pearson at 20.20, took her history (she was open about her history of drugs and alcohol abuse) and noted her medication (valium and an anti-psychotic medication). The FME advised her and the PCO how the medication should be taken. She was assessed as calm and fit to be detained. The PCO also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest. She spoke with a solicitor by telephone and later (21.45-22.30) he consulted with her at the police station. She was detained overnight.
9. She was transported the next morning (9 November) to the magistrates’ court. At approximately 10.15 it was discovered that the warrant was not valid and she was released from custody, although she stayed in the building. The Court Police Liaison Officer informed the on-duty probation officer, who happened to know Kelly Pearson and her background, and who, in turn, informed Kelly Pearson. A solicitor (from the law firm which represented her but who did not know her) also consulted with her and, having been informed by a “prison custody officer” that there was no valid warrant, the solicitor also confirmed this to her. The solicitor saw her around 10.15 and at midday and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to West Yorkshire. Since she was not under formal probation supervision, her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds. Kelly Pearson insisted on going to a friend’s house in Manchester rather than home: her solicitor and the probation officer agreed. The travel warrant to Manchester from court funds was approved at around 15.30 by a Stipendiary Magistrate. Kelly Pearson collected the travel warrant and, indicating that she knew the way to the bus station, left the court building. The probation officer and her solicitor considered her angry, frustrated and, at times, aggressive. While both believed that she might have been drinking, taking drugs or medication (she had left the court building during the day), neither considered that she needed medical assistance. According to his evidence at the Inquest, the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern. Kelly Pearson called the applicant in a distressed state at 18.20: she expressed no suicidal intent.
10. Kelly Pearson did not go to Manchester but remained in London overnight. The following morning (10 November) she attended The Passage Day Centre (a registered charity) where the manager knew her and she spent some time with a mental health project worker. She was not communicative. She telephoned her mother from the Centre. The project worker also spoke to her mother and her mother explained her daughter’s history and provided the number of her GP in West Yorkshire. On the advice of the manager of the Centre, Kelly was referred to a drop-in Medical Centre (which Kelly knew) that afternoon and her GP in West Yorkshire was informed. The project worker gave Kelly Pearson the bus fare to the Medical Centre and Kelly Pearson left in an improved mood.
11. At approximately 15.00 she attended the Medical Centre (a National Health Service clinic). She saw a GP who was also familiar with her history and who had consulted with her GP in West Yorkshire before he saw her. She refused to take the medication prescription given to her. She was agitated, aggressive and expressing paranoid ideas, but not suicidal. She left the Medical Centre at approximately 16.20.
12. At 18.32 the police were called to attend when Kelly Pearson had collapsed in the street. Identification, but not medication, was found on her. She was unconscious with a weak pulse. An ambulance arrived and she was transported to hospital where she was pronounced dead at 19.26. The post-mortem examination confirmed that she died of a methadone overdose.
13. On 15 November 1999 an Inquest was opened and adjourned by the Coroner. It was resumed on 25 April 2002, after the coming into force of the Human Rights Act 1998 (“HRA”). The Inquest lasted one day.
14. The applicant, who was present and legally represented, argued that the Inquest should examine: who or what factor(s) was responsible for the original execution of the warrant not being registered with the proper authorities; who or what was responsible for incorrect details being entered on the PNC; what, if any, safeguards existed to prevent the errors; why there was no reference on the Prisoner Risk Assessment Form that came from the West Yorkshire police station to medication, drug abuse or self-harm; what happened to her medication prior to her being discharged from custody; who was responsible for securing basic financial, logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported hundreds of miles from her home, family and probation officer; why was she left to die involuntarily, homeless, penniless and without sufficient medication; and why were the two treating doctors not able to take more effective action in dealing with her mental health difficulties on the day of her death.
15. The Coroner did not allow the Inquest to cover such matters, the Inquest being limited to matters directly causative of death. Since Kelly Pearson had died before the entry into force of the HRA, the question “how ... she came by her death” (section 11(5)(b)(ii) of the Coroner’s Act 1988, “the 1988 Act”) was considered by reference to the pre-HRA test (R. v. North Humberside Coroner, ex parte Jamieson [1995] QB 1) rather than by reference to the post-HRA “Middleton” test (R.(Middleton) v. West Somerset Coroner [2004] UKHL 10 and R.(Sacker) v. West Yorkshire Coroner [2004] UKHL 11). In one exchange between Counsel for the applicant and the Coroner, the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which, however remotely, might be considered responsible for death. Accordingly, while the error in relation to the warrant was accepted, it was not the role of the Inquest to enquire into why or how that error had occurred.
16. The Coroner obtained a considerable amount of evidence about Kelly Pearson’s background and the events of the last two days of her life. The PCO described his contact with the applicant on 8 November. The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on the morning of 9 November. The solicitor and probation officer described their contacts with Kelly Pearson at the magistrates’ court on the morning of 9 November. The relevant medical personnel also described their contacts with her: the FME at Belgravia Police Station as well as the mental health project worker at the Day Centre and the doctor at the Medical Centre. The Coroner also read into the record reports detailing her symptoms and treatment from her GP, community psychiatric nurse and the consultant psychiatrist, all of whom had treated her in West Yorkshire,. The police officer called to attend when she collapsed in the street and the pathologist who conducted the post-mortem examination also gave evidence.
17. The Coroner summed up the evidence. He then advised on matters of law, explaining, inter alia, that it was no part of the Inquest’s role to apportion blame given section 42 of the Coroner’s Rules 1984 (“the 1984 Rules”). He explained the five standard questions in the Inquisition Form to which the jury had to respond. Items 1 and 5 concerned certain personal identifying details of the deceased. Item 2 concerned the “injury or disease causing death”: the Coroner considered this to be “crystal clear” and that there was absolutely no dispute given the pathologist’s conclusions (“Methadone, Diazepam and alcohol poisoning”). Item 3 concerned “the time, place and circumstances at or in which injury was sustained”: the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries. Item 4 constituted the “verdict” and allowed two possible conclusions: “death by misadventure” and “an open verdict”. The former was described as a situation where ‘an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’. The latter (open verdict) was explained as the verdict which could be returned if the jury formed the view that the evidence “did not fully disclose the means whereby the cause of death arose” or if there was insufficient evidence to return a verdict of death by misadventure.
18. The jury found that the cause of death was “methadone, diazepam and alcohol poisoning” (Item 3) and it returned a verdict of death by misadventure (Item 4). The Coroner then closed the Inquest as follows:
“From the evidence we heard, [Kelly Pearson] certainly needed help but there is no evidence to suggest that all the professionals, or indeed the health care professionals, had done anything other than acted in good faith, professionally and tried to help her within quite difficult circumstances. [Kelly Pearson] died as a result of a drug overdose, by her own volition, which is very sad and tragic indeed. Clearly, no one who had any knowledge of this tragic death could not but have the deepest sympathy for [Kelly Pearson’s] mother who clearly was at the end of her tether trying to do the best for her. Her frustration was compounded by the unfortunate ‘cock up’ of the inappropriate warrant which then brought [Kelly Pearson] to London where she died. [Kelly Pearson’s] mother’s distress and, indeed, palpable anger, was entirely understandable, and the Court Services at the very least, owe her a big apology indeed. No doubt there will be an inquiry into this matter, which is entirely outside of the remit of my court and I shall comment no more and.....I wish them luck in their quest in seeking answers to address her concern.”
19. The applicant complained to the West Yorkshire Probation Board (“WYPA”) and a report was sent to her solicitors in September 2002 (not submitted). The London Probationary Authority (“LPA”) investigated and reported on the complaint in so far as it concerned the London area. Following a meeting with, among others, the applicant and her solicitors on 17 January 2003 and other inquiries, the LPA issued a report dated 22 January 2003. It found that, while the probation officer was not required to supervise Kelly Pearson on 9 November, he did all that was necessary to ensure a travel warrant was issued; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the LPA before the Criminal Justice Board; and that the LPA and the magistrates’ court staff did as much as they could for Kelly Pearson.
20. The applicant appealed to the Prisons and Probation Ombudsman for England and Wales who conducted an investigation into the applicant’s claims about the LPA and the WYPA. In the Ombudsman’s report of 6 October 2003 he supported the conclusions of the LPA, finding that the probation staff had behaved professionally at the magistrates’ court and had assisted Kelly Pearson as far as it was within their means to do so. On 16 January 2004 the Ombudsman’s report found that the WYPA had fulfilled all of their obligations in respect of the conditions of the deferred sentence, noting that the relevant probation officer in West Yorkshire had gone above and beyond what was required of her.
21. The applicant also claimed to have made various complaints to the police which were “unrecorded”. She submitted that her appeal to the Independent Police Complaints Commission (“IPCC”) was “upheld” in February 2007 and that the IPCC noted that the complaint might not be investigated because of the lapse of time since the incident. She referred to a letter of 2003 wherein the Metropolitan Police Service declined to “further investigate the circumstances of the applicant’s complaints”. The applicant also believed that she had unsuccessfully pursued complaints to the Magistrates’ Court Authority. No substantiating documents were submitted.
22. In October 2003 the applicant (who had legal aid) applied to challenge the Inquest under section 13 of the 1988 Act, arguing mainly that the Inquest failed to comply with Article 2 of the Convention. Leave was granted on 20 May 2004.
23. On 6 May 2005 the case was dismissed by judgment of the High Court. That court defined the key question as: where a Coroner conducted an Inquest into a pre-HRA death, was the approach to the question of “how ... the deceased came by his death” (section 11(5)(b)(ii) of the 1988 Act) to be considered by reference to the pre-HRA test (a Jamieson Inquest) or by reference to the post-HRA test (a Middleton Inquest).
24. The High Court found that an Inquest into a pre-HRA death did not have to be Article 2 compliant given the McKerr judgment of the House of Lords (In re McKerr [2004] 1 WLR 807). The High Court concluded:
“... I therefore conclude that the [HRA] does not require a Coroner now investigating a death which occurred before the coming into force of the [HRA] to conduct an inquest in an Article 2 compliant manner. It may be that his failure to do so may be actionable in international proceedings in Strasbourg, just as the failure of the Secretary of State resulted in a successful application to Strasbourg in McKerr. However, that does not assist the claimant in the domestic context.”
25. In addition, the Coroner had retained and properly applied the correct Jamieson requirements. Having noted the considerable amount of evidence obtained by the Coroner, the High Court considered that the Coroner was “undoubtedly entitled to conclude that, under the pre-HRA law, it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously.”
26. In commenting on the final passage of the Coroner’s speech closing the Inquest and, in concluding itself, the High Court noted:
“...I wish to associate myself with the deep sympathy expressed by the Coroner. I well appreciate that the claimant, as a loving parent, will continue to feel aggrieved by the scope of the inquest. It will be no consolation to her that if [Kelly Pearson] had died after 2 October 2000, different considerations would have applied to the parameters of the inquest. Sadly, however, the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she, understandably, feels entitled. I am sorry to say that her appeal must be dismissed.”
27. Leave to appeal to the Court of Appeal was granted, the single judge noting that an intervening judgment of the Court of Appeal was in the applicant’s favour (R.(Hurst) v London Northern District Coroner [2005] EWCA 890). The applicant was legally aided and represented.
28. The appeal was therefore stayed pending the House of Lords’ judgment in the Hurst case. On 28 March 2007 that judgment was delivered (R.(Hurst) v London Northern District Coroner [2007] UKHL 13), the House of Lords reversing the Court of Appeal judgment and confirming that there was no duty on a Coroner to hold an Inquest complying with Article 2 of the Convention in relation to a death that pre-dated the entry into force of the HRA even if the Inquest took place thereafter. Lord Brown approved the judgment of the High Court in the present applicant’s case.
29. Accordingly, on 6 April 2007 Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn. On 10 May 2007 the Court of Appeal dismissed the appeal on a consent basis.
30. On 2 March 2003 the applicant issued civil proceedings for damages against a number of respondents, including the Greater London Magistrates’ Court Authority, alleging negligence and false imprisonment as regards the arrest and detention of Kelly Pearson on the basis of an unlawful warrant. The case was stayed pending the above-described judicial review proceedings. Legal aid was discharged in 2004 and the applicant acted in person when the case was re-activated thereafter.
31. On 9 May 2008 the Greater London Magistrates’ Court Authority agreed to compensate the applicant in the sum of 8,000 pounds sterling (“GBP”) and for previously incurred legal costs in the sum of GBP 12,000.
32. The HRA came into force in England, Wales and Northern Ireland on 2 October 2000.
33. Section 3 of the HRA provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 would render the relevant public authority liable to the plaintiff under section 7 of the HRA and a judge has power to award damages under section 8 of the HRA.
34. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown.
35. Section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (the document completed by the Inquest jury at the end of the evidence) as follows:
“(i) who the deceased was; and
(ii) how, when and where the deceased came by his death; ...”
36. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how, when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person.
37. In Regina v Her Majesty’s Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners (unreported 26 January 1994), Lord Justice Simon Brown said:
“In short the inquiry must focus on matters directly causative of death and must, indeed, be confined to these matters alone ... . The recent, eleventh edition of Jervis on Coroners puts it thus:
‘The question of how the deceased came by his death is of course wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the death’.”
38. This latter case informed the findings of the Court of Appeal in the principal case concerning the role and function of an Inquest as a fact-finding inquiry concerning a death pre-dating the HRA (R. v. H.M. Coroner for North Humberside and Scunthorpe ex p. Jamieson [1995] Q.B. 1). Sir Thomas Bingham M.R. held that the words “How ... the deceased came by his death” in section 11(5)(b) of the Coroners Act 1988 and Rule 36 were to be understood as meaning “by what means”:
“... 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 more limited question directed to the means by which the deceased came by his death.”
39. A Jamieson Inquest provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict. Having emphasised that the Inquest could not be concerned with matters of ordinary negligence (a failure to take reasonable care), the judgment defined the verdict of neglect (or lack of care) as a term of art:
“Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence.
Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.”
Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.”
40. On 11 March 2004 House of Lords decided (R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of the Jamieson Inquest, being insufficient to provide a meaningful conclusion as to whether the conduct of State agents might reasonably have prevented a death, was incompatible with the procedural requirement of Article 2 of the Convention. In so deciding and using the interpretation mechanism of section 3 of the HRA an Inquest, in deciding “how” the deceased came by his death, was to consider both “by what means” and “in what circumstances” the deceased came by his death. This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the State as well as in cases where it was alleged that the State had breached its positive duty to take reasonable steps to safeguard the lives of individuals. In this latter respect, the House of Lords noted that:
“The decision in [Keenan v. the United Kingdom, no. 27229/95, ECHR 2001III] shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that Article 13 had been violated in part on its opinion ... that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment.
41. Lord Bingham therefore made the following observation as to how those Rules would henceforth be applied:
“The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of “how” in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art.”
42. On the same day (11 March 2004) the House of Lords gave judgment in In re McKerr ([2004] 1 WLR 807). Following a finding of a breach of the procedural obligation under Article 2 by this Court (McKerr v. the United Kingdom, no. 28883/95, ECHR 2001III), that case determined that an obligation to conduct an Article 2 inquiry into a fatal shooting did not apply to a death which pre-dated the entry into force of the HRA.
43. Further to the delivery of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court accepted that an Inquest compliant with Article 2 should be held into the use of lethal force which took place prior to the entry into force of the HRA (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). Lady Hale did not consider that this required the re-opening of an Inquest that had already taken place, unless there was important new material.
44. The Court refers to the Relevant Domestic Law and Practice outlined in its judgment in Osman v. the United Kingdom (28 October 1998, §§ 89-97, Reports of Judgments and Decisions 1998VIII) and in Z and Others v. the United Kingdom ([GC], no. 29392/95, §§ 57-65), ECHR 2001V). It would add as follows.
45. The House of Lords judgment in Hill v. Chief Constable of West Yorkshire ([1989] A С 53) was later relied upon in Osman v Ferguson ([1993] 4 AU. E.R.344) and is also described in the judgment of this Court in its above-cited Osman judgment.
46. The public policy constraints on recognising a duty of care by public authorities were further considered in Brooks v. Commissioner of Police for the Metropolis ([2005] 1 W.L.R. 1495). The claimant was the friend of Stephen Lawrence. Both men had been subjected to a racist attack by five white youths, which resulted in the death of Stephen Lawrence. A subsequent public inquiry held that the investigation, and in particular the treatment of Mr Brooks, was open to criticism on a number of fronts, as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of the Metropolitan Police. The House of Lords allowed the appeal of the Commissioner of Police against the decision of the Court of Appeal refusing to strike out the claimant’s action in damages for negligence. Lord Steyn gave the main judgment and considered the continuing status of Hill’s case under English law. He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings. However, the underlying refusal in Hill’s case to recognise a duty of care when the police merely exercise their public functions was upheld. The judgments of Lord Steyn and Lord Nicholls recognised, however, that a duty of care would be held to exist in exceptional cases.
47. Since the Hill case, a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing the recognition of a duty of care. They include circumstances where a person acts as an informant of the police (Swinney v. Chief Constable of Northumbria [1997] Q.B. 464); or has their property targeted in the course of police operations (Rigby v. Chief Constable of Northamptonshire [1985] 2 All. E.R. 986); or is employed within their service (Waters v. Commissioner of Police [2000] 1 WLR 1607); or where a person is in detention (Kirkham v. Chief Constable of Manchester [1990] 2 Q.B. 283).
48. There is a parallel common law line of authority concerning the duty of care of local authorities. It is authoritatively expressed in the case of X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353 and described in the above-cited Z and Others v. the United Kingdom judgment), where the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. Two later significant judgments found the local authority to owe a duty of care, including to parents, as regards children placed by, or in the care of, a local authority (W. and Others v. Essex County Council [1998] 3 All England Law Reports 111; and Barrett v. London Borough of Enfield [1999] 3 Weekly Law Reports 79).
49. The Court of Appeal judgment in the case of Van Colle ν. Chief Constable of Hertfordshire ([2007] 1 W.L.R. 1821) concerned a death (the killing of a witness in a criminal prosecution) which post-dated the entry into force of the HRA. The applicant’s claim under section 7 of the HRA, for a breach of Article 2 of the Convention, was upheld.
50. In so doing, the Court of Appeal analysed the differences between that action under section 7 of the HRA and common law negligence, the Court of Appeal observing that the claimant would not have succeeded if the claim had been brought in negligence:
“[Counsel for the claimant] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in [Hill and Brooks]. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge’s judgment gives the claimants some encouragement, the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants.”
51. In analysing the differences between the common law action and an action under section 7 of the HRA (of a breach of Article 2), the Court of Appeal noted that the public policy concerns about finite police resources were acknowledged in the Convention case-law, by setting the threshold for a breach of Article 2 at a relatively high point, although not so high as to require gross negligence. Having cited the relevant paragraph 116 of the above-cited Osman judgment of this Court, the Court of Appeal observed:
“.. in [Osman v. the United Kingdom] the [Court] stressed that not every claimed risk to life gives rise to a positive obligation under Article 2. That is because of policy considerations which are very similar to those which led the House of Lords in [the Hill] case to conclude that no duty of care is owed by the police to those in the position of Giles. However, unlike the solution so far adopted by the common law, the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities.”
52. The House of Lords ([2008] UKHL 50) later allowed the appeal of the Chief Constable in the Van Colle case, finding that the claimants had not satisfied the “Osman threshold” so that there had been no violation of the substantive requirements of Article 2 of the Convention.
53. The parallel appeal before the House of Lords decided at the same time (Smith (FC) v. Chief Constable of Sussex Police [2008] UKHL 50) concerned a claim under the common law of negligence only. The House of Lords confirmed the “robust” approach of the above-cited Brooks judgment and explicitly contrasted that with the remedy available under the HRA.
54. The Law Reform (Miscellaneous) Provisions Act 1934 (“the 1934 Act”) provides for the survival of causes of action for the benefit of the deceased’s personal estate. The relevant part of section 1(1) provides:
“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”
55. This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death, including non-pecuniary damages for pain and suffering between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act (the only recoverable amount being funeral expenses).
56. The Fatal Accidents Act 1976 (“1976 Act") confers a right of action for a wrongful act causing death. Section 1(1) provides:
“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
The statutory right of action is reserved to the deceased’s dependants (parents are not considered dependants) and allows the recovery of their pecuniary loss. If there are no dependants, no pecuniary loss is recoverable. Bereavement damages (fixed at GBP 7,500) are available to parents if the deceased child was under 18 years of age. Funeral expenses are recoverable. English law does not recognise a tort of wrongful death.


ITEMID: 001-89013
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DE PELLIER v. POLAND AND UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Edmund Rudolf de Pellier, is a Polish national who was born in 1931 and lives in Warsaw. He was represented before the Court by Mr M. Kanawka, a lawyer practising in Gdańsk.
Before the Second World War the applicant's family owned real property in the eastern provinces of pre-war Poland, the so-called “Borderlands” (Kresy). Those regions included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. In September 1939 the regions were invaded by the USSR.
Following the end of the war, when the Polish eastern border was redrawn westwards and fixed along the Bug River, the Borderlands acquired the name of the “territories beyond the Bug River” (ziemie zabużańskie).
On an unspecified date following 9 September 1944 the applicant's family, like some 1,240,000 other Polish citizens who were at various dates from 1944 to 1953 subject to repatriation from the territories beyond the Bug River, was repatriated to Poland under the provisions of the so-called “Republican Agreements” (umowy republikańskie).
A more detailed account of the historical background and the relevant provisions of the Republican Agreements and other related treaties and laws can be found in the Court's judgment in the pilot case of Broniowski v. Poland (see, in particular, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45).
On 30 March 1947 the Gdańsk District Court (Sąd Rejonowy) gave a declaratory judgment stating that the applicant had owned real property of substantial value in the territories beyond the Bug River. The property consisted of, in particular, four factories, two hotels, and one cinema, all located in Lwów.
On 12 March 1991 the Braniewo Distric Office (Urząd Miasta) informed him that his claim for compensation had been entered in the relevant register as claim no. 105 but its realisation depended on the adoption of future measures by Parliament in respect of Bug River claims.
The applicant's subsequent attempts to acquire State property were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims.
This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski, cited above, §§ 48-61, 69-87 and 168-176).
In 1996 the applicant wrote letters to the Polish Consulate in Lwów, and to the President of Lwów asking for help in obtaining compensation for the property.
In 2002 the applicant wrote a letter to the President of Ukraine complaining about his situation.
A detailed description of the relevant domestic law and practice concerning the Bug River property is set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v. Poland (merits), cited above §§ 39-120; and Broniowski v. Poland (friendly settlement), cited above, §§ 14-30) and the decisions given in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland, cited above, §§ 24-25 and §§ 28-29 respectively.
The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23 and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 2227.


ITEMID: 001-75264
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOCEVAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1971 and lives in Žalec.
6. On 6 December 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 11 November 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 3,312,900 tolars (approximately 13,800 euros) for the injuries sustained.
Between 21 May 1999 and 4 March 2003 the applicant lodged four preliminary written submissions and/or adduced evidence.
Between 2 April 1998 and 21 May 1999 he made five requests that a date be set for a hearing.
On 5 November 2001 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new first-instance court judge.
Of the five hearings held between 11 October 1999 and 18 April 2003 none was adjourned at the request of the applicant.
During the proceedings the court appointed two medical experts. The court also sought an additional opinion from one of the appointed experts.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 17 June 2003.
8. On 24 June 2003 the applicant appealed to the Celje Higher Court. ZT cross-appealed.
On 2 February 2005 the court allowed the appeals in part, lowered the damages awarded, and remitted the case, in the part concerning the costs and expenses of the proceedings, to the first-instance court for re-examination.
The judgment was served on the applicant on 9 March 2005.
9. On 4 April 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60965
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF A.B. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 with regard to refusal to appoint a lawyer;No violation of Art. 6-1 with regard to alleged arbitrariness of decision;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Matti Pellonpää
TEXT: 9. In 1983 the applicant was found to be partially disabled. She continued working. On 2 November 1988 the applicant was obliged to sign an agreement with her employer according to which her contract of employment would expire on 30 June 1989.
10. On 4 September 1989 the Social Security Commission in Bratislava declared the applicant fully disabled as from 1 July 1989. A full invalidity pension was granted to the applicant.
11. On 1 October 1990 her former employer rehabilitated the applicant for the persecution to which she had been subjected in the past.
12. After the entry into force of the Extra-Judicial Rehabilitations Act (see “Relevant domestic law” below) the applicant claimed that her invalidity pension should be increased. She alleged, in particular, that the termination of her contract of employment in 1989 had been due to political persecution within the meaning of Section 21 of the Extra-Judicial Rehabilitations Act.
13. On 5 April 1993 the Social Security Administration dismissed the applicant’s claim on the ground that she had failed to comply with the requirements set out in Sections 21 and 22 of the Extra-Judicial Rehabilitations Act.
14. On 21 March 1995 the Bratislava City Court upheld the decision. The City Court heard the parties and established that the applicant had failed to submit a certificate within the meaning of Section 22 of the Extra-Judicial Rehabilitations Act which was a prerequisite for granting her claim. The City Court noted that separate proceedings concerning this issue were pending before the Bratislava I District Court. It was further stated in the reasons for the judgment that the representative of the Social Security Administration had promised to adjust the applicant’s pension upon the delivery of such a certificate.
15. On 26 March 1996 the Bratislava I District Court ordered the successor of the applicant’s former employer to deliver a certificate pursuant to Section 22(1) of the Extra-Judicial Rehabilitations Act to the applicant. Prior to that the District Court appointed an advocate to represent the applicant at the latter’s request. The applicant received the certificate on 14 October 1996.
16. On 18 October 1996 the applicant again requested the Social Security Administration to adjust her invalidity pension pursuant to the Extra-Judicial Rehabilitations Act. The request was dismissed on 30 October 1996. The decision stated, with reference to Section 24(6) of the Extra-Judicial Rehabilitations Act, that the applicant’s invalidity pension could not be adjusted as her contract of employment had been terminated in the course of the same year when she had acquired the right to an invalidity pension.
17. On 18 November 1996 the applicant challenged the decision before the Bratislava City Court. She also requested the City Court to appoint a lawyer to represent her in the proceedings. She referred to Article 30(1) of the Code of Civil Procedure and explained that her handicap prevented her from coming to the court in person. The applicant further stated that she was indigent and that the case might raise questions of law of a complex nature.
18. In a written submission of 13 January 1997 the Social Security Administration asked the court to uphold the decision challenged by the applicant. This submission was forwarded to the applicant who submitted a written reply on 14 February 1997. The applicant maintained, in particular, that the conclusion of the administrative authority was erroneous and contrary to the pledge which its representative had earlier made (see paragraph 14 above).
19. On 23 January 1997 the Bratislava Regional Court, which took over the case from the former City Court, summoned the applicant to a hearing scheduled for 25 February 1997. A type-written remark on the upper part of the summons read as follows:
“We hereby inform you that no compulsory defence is required in the proceedings and that the court cannot, therefore, appoint a defence counsel to assist you. In case that you wish to be represented by a lawyer, you should choose one yourself.”
20. On 14 February 1997 the applicant again requested the Regional Court that a lawyer be appointed to represent her in the proceedings. She explained, in particular, that her health did not allow her to attend the hearing, that her only income consisted of a modest invalidity pension and that she met the requirements for the appointment of a lawyer under the relevant provisions of the Code of Civil Procedure. She asked the court to notify her of its position on her request “by means and within a period corresponding to the relevant legal rules”. The applicant further requested that the hearing be adjourned as, in her view, the court’s proceeding with the case in her absence would be contrary to her fundamental rights.
21. On 24 March 1997 the applicant informed the Regional Court that her health did not allow her to appear at the hearing scheduled for 1 April 1997. In the letter the applicant stated that a lawyer should be appointed to represent her and complained that her requests to this effect of 18 November 1996 and of 14 February 1997 had not been dealt with.
22. On 1 April 1997 the Bratislava Regional Court upheld the Social Security Administration’s decision of 30 October 1996. The Regional Court noted that the applicant’s contract of employment had been terminated by 30 June 1989 and that she had been declared fully disabled and granted an invalidity pension with effect from 1 July 1989, that is the day following the termination of her employment. The court concluded that her invalidity pension could not be adjusted pursuant to Section 24(6) of the Extra-Judicial Rehabilitations Act.
23. On 24 April 1997 the applicant appealed. She alleged that the Regional Court had decided arbitrarily and that it had disregarded the pledge to grant her claim after the delivery of the certificate made by the representative of the Social Security Administration in the proceedings leading to the City Court’s judgment of 21 March 1995. The applicant further argued that the Regional Court had failed to establish the relevant facts correctly. On 16 June 1997 the applicant submitted further documentary evidence to the appellate court.
24. On 29 September 1997 the Supreme Court upheld the first instance judgment. The Supreme Court reiterated that the applicant had been granted a full invalidity pension as from 1 July 1989, that is the day following the termination of her contract of employment. It therefore considered that the applicant had not suffered any damage which could be compensated pursuant to Section 24(6) of the Extra-Judicial Rehabilitations Act. The Supreme Court pointed out that the representative of the defendant had apparently overlooked the above fact when she had stated that the claim would be granted upon the delivery of the relevant certificate to the applicant. However, that statement had been made in a different set of proceedings and it could not affect the decision on the applicant’s claim in the proceedings under the consideration. The appellate court decided in camera.
25. On 27 November 1997 the applicant lodged an appeal on points of law. She complained, inter alia, that the appellate court had not held a hearing in the case and had thus prevented her from submitting her arguments. On the same day the applicant requested the Bratislava Regional Court to appoint a representative to her in the proceedings on her appeal on points of law. She explained that the case was complex, that her handicap prevented her from acceding to the court room and that her only income was an invalidity pension amounting to 4,093 Slovakian korunas. The applicant also maintained that her constitutional right to legal protection had been violated in that her request for a lawyer to be appointed had not been processed in due manner.
26. On 27 January 1998 a different chamber of the Supreme Court dismissed the applicant’s appeal on points of law. The Supreme Court found that the applicant had been duly summoned to the hearing before the Bratislava Regional Court held on 1 April 1997 and that she had failed to appear without an excuse. As to the appellate proceedings, the Supreme Court recalled that Articles 250f and 250s of the Code of Civil Procedure permitted the appellate court to decide on the case without hearing the parties. Furthermore, in the course of the proceedings the applicant made proposals as regards the evidence to be taken, she made comments on the case and submitted her arguments to the courts.
27. The Supreme Court further noted that the applicant “had been free to choose a legal representative and to apply for free legal representation”. Since the applicant did not lack legal capacity to act, the courts were not obliged to appoint a lawyer ex officio. The Supreme Court examined the applicant’s appeal on points of law in camera with reference to Article 250s (2) of the Code of Civil Procedure.
28. Article 30(1) provides that courts may appoint a representative at the request of a party who meets the requirements for waiver of court fees when it is necessary for the protection of that party’s interests. Pursuant to paragraph 2 of Article 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of that party’s interests so requires.
29. Under Article 138(1), the presiding judge may grant a party’s request for waiver of court fees where it is justified by the situation of such a party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.
30. Pursuant to Article 167(1), courts deliver a formal decision (“uznesenie”) unless the law otherwise provides. Decisions have to be delivered, inter alia, on issues relating to the conditions for proceeding with a case and also to matters relating to the conduct of proceedings.
31. Article 250f entitled courts to deliver a judgment without prior oral hearing in simple cases, in particular when there was no doubt that the administrative authority had established the facts correctly and the point at issue was a question of law. In its finding PL.ÚS 14/98 of 22 June 1998 the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to the Constitution and also to Section 6 § 1 of the Convention. As a result, this provision ceased to be effective.
32. Pursuant to Article 250s (2), in cases concerning social security claims an appeal to the Supreme Court is available against the Regional Court’s decision. The appellate court’s decision may be challenged by means of an appeal on points of law before a different chamber of the Supreme Court. In appellate proceedings and in proceedings on appeal on points of law the Supreme Court is not required to hold a hearing.
33. The aim of the Extra-Judicial Rehabilitations Act (Zákon o mimosúdnych rehabilitáciách) is to redress certain infringements of property and social rights which occurred between 25 February 1948 and 1 January 1990. The following provisions are relevant in the present case.
34. Pursuant to Section 21(1), legal actions terminating a person’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void.
35. Section 22(1) provides that the former employer or its successor shall issue, at the request of the person concerned, a certificate that the latter’s contract of employment was terminated for reasons mentioned in Section 21(1). Paragraph 3 of Section 22 entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within three months.
36. Under Section 24(1), when the termination of employment is considered void within the meaning of Section 21, the period between the termination of the contract of employment and the date when the person concerned acquired a right to old-age pension or invalidity pension is to be considered as the period of employment for the determination of that person’s pension rights.
37. Section 24(6) provides that, when adjusting the pensions of persons covered by Section 24(1), their average monthly salary is to be determined on the basis of their actual salary in the calendar year preceding the termination of their employment. The general wages increase must thereby be taken into account.
38. Pursuant to Section 26, pensions which were granted prior to the entry into force of the Extra-Judicial Rehabilitations Act are to be adjusted in accordance with Section 24 upon the request of the person concerned.
39. Section 15(1) guarantees the right to legal assistance and entitles everybody to ask for it any advocate. Under paragraph 2 of Section 15 advocates may refuse legal assistance to a person only where there are serious grounds to believe that he or she cannot do so in an appropriate manner. Advocates must give reasons for such a refusal and the Bar Association is entitled to determine whether it was justified. Paragraph 3 of Section 15 provides that persons who were refused legal assistance can ask the Bar Association to assign an advocate to them.
40. In its decision No. 7/1990 of 12 September 1990 the governing body (predsedníctvo) of the Slovak Bar Association held that advocates are authorised to provide legal assistance free of charge or at reduced fees where the average monthly income of the person concerned does not exceed the statutory minimum wage and provided that such a person does not own property other than that which is indispensable for meeting the needs of everyday life. Advocates are also authorised to provide legal assistance free of charge or for reduced fees where it is justified by exceptional circumstances enumerated in the decision.
41. The representatives of the Slovak Bar Association have expressed the view that even in cases where the Bar Association appoints an advocate to represent a person it is not entitled to order that the advocate should do so free of charge. It is up to advocates to decide whether they will provide a person with legal assistance free of charge of for reduced fees. In this respect advocates shall guide themselves by decision No. 7/1990 delivered by the governing body of the Slovak Bar Association.
42. In accordance with academic opinion, courts are obliged to appoint a representative to a party under Article 30 of the Code of Civil Procedure where (i) the party concerned filed a request to this effect, (ii) that party meets the requirements for waiver of court fees laid down in Article 138 of the Code of Civil Procedure (it is thereby irrelevant whether or not the proceedings in question are exempted from court fees) and (iii) it is objectively justified by the need of a better protection of the interests of such a party having regard, in particular, to his or her situation and the subject-matter of the proceedings. A measure under Article 30 of the Code of Civil Procedure should take the form of a decision (uznesenie) which can be challenged by means of an appeal (see, e.g., Občianske právo s vysvetlivkami, 2. zväzok, Iura Edition, 1996, p. 58 and also Občiansky súdny poriadok, JUDr. A. Bajcura, CSc. a kol., I. diel, Komentár, Eurounion, Bratislava 1996, p. 77).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70089
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MELNYCHUK v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Mykola Mykytovych Melnychuk, is a Ukrainian national who was born in 1929 and lives in Berdychiv, in the Zhytomyr region of Ukraine.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1996 the Berdychevska Zemlya, a local newspaper, published a critical review by Mr P. of a book written by the applicant.
On 26 January 2001 the same newspaper published another article by Mr P. about a new book of poetry also written by the applicant. Mr P. wrote that the applicant’s book looked good, but that it had no soul. Mr P. observed that he had previously commented on another book by the same author and explained that, without a basic knowledge of literary writing and respect for the rules of language, one could not be a poet. Mr. P. then gave a number of examples from the applicant’s new book where the author used numerous Russian words in the Ukrainian text. One of the quotations from the applicant’s book was “The town looks like a girl/ But also has something from the goat/ Though Berdychiv [name of the town] is older/ Almost twice [older]”. Mr P. also criticised the author for using portraits of and making references to Taras Shevchenko, a famous Ukrainian poet. Mr P. called the applicant’s poetry the “theatre of the absurd”. He advised the sponsors of the book to put their money to better use by giving it to charity rather than funding the publication of books of dubious quality. Finally, he stated that the existence of such books could be harmful for the public, particularly schoolchildren, who might think that the printed word was a model for language use.
On 14 April 2001 the applicant submitted a written reply to the newspaper, requesting that it be published. He pointed out that Mr P. was a member of the Union of Writers, and went on to refer to Mr P. as the “member” (член), a word which is widely used in vulgar language for the penis. He further claimed that Mr P. was jealous of his popularity and gave a confusing account of Mr P.’s political and business activities. The applicant compared himself to the writers who were persecuted during the Soviet era. He accused Mr P. of being an alcoholic who wrote low-quality verse about birds, and who tried to increase his political standing by criticising other writers. The applicant further disputed the criticism of his use of vocabulary. Finally, he called Mr P. “subhuman” (відлюдок).
The applicant’s request for the publication of his reply was refused.
In May 2002 the applicant instituted proceedings in the Berdychivskiy City Court against the Berdychevska Zemlya newspaper, claiming compensation for pecuniary and non-pecuniary damage caused by the publication of the above-mentioned articles. He maintained that they had undermined his popularity and violated his copyright. He also requested the court to order the newspaper to publish his reply to the impugned articles.
Before the court, the newspaper’s representatives maintained that they had refused to publish the applicant’s reply because it contained obscene and abusive remarks about Mr P. The applicant had been informed of this in writing, and had been invited to amend his reply accordingly. The applicant maintained that he had never received this written refusal, which he believed to have been falsified, and claimed to have received only oral refusals over the telephone.
On 27 September 2002 the court found against the applicant. The court established that Mr P.’s articles were written in the form of book reviews, in which the author expressed his personal opinion about the quality of the applicant’s literary work. It found that the newspaper had been entitled to agree or refuse to publish the applicant’s protest. The newspaper had refused to publish the applicant’s views because they contained obscene and abusive remarks about the book reviewer’s personality, rather than a reply to the content of the articles in question. This ground for refusal was provided for by section 37 of the Press Act. The court also dismissed as being unsubstantiated the applicant’s complaint about an alleged violation of his copyright.
The applicant appealed to the Zhytomyr Court of Appeal, stating, inter alia, that section 37 of the Press Act entitled him to demand the rectification of untruthful or defamatory information about him.
On 16 December 2002 the Zhytomyr Court of Appeal upheld the decision of the first-instance court. It also observed that the impugned articles contained opinions, not facts, and that their content could not therefore be examined in terms of veracity.
On 30 October 2003 a panel of three judges of the Supreme Court of Ukraine dismissed the applicant’s request for leave to appeal in cassation.
The relevant extracts of the resolution read as follows:
“The Committee of Ministers ...
Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles:
1. In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication.
2. In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute:
...
ii. an attack upon his dignity, honour or reputation ...”
The relevant extract of the recommendation reads as follows:
“...
5. The Assembly consequently recommends that the Committee of Ministers:
i. ask governments of member States to see that legislation guarantees effectively the organisation of the public media in such a way as to ensure neutrality of information, plurality of opinions and gender balance, as well as a comparable right of reply to any individual citizen who has been the subject of an allegation;
...”
The relevant extract of the appendix to the recommendation reads as follows:
“Principle 2
The governments of the member States should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.
To this end, governments of member States should examine ways and means to:
...
– enhance the possibilities of combating hate speech through civil law ... by ... providing for the possibility of court orders allowing victims a right of reply or ordering retraction;
...”
The relevant extracts of the recommendation read as follows:
“1. Scope of the right of reply
Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.”
“5. Exceptions
By way of exception, national law or practice may provide that the request for a reply may be refused by the medium in question in the following cases:
...
– if the reply is not limited to a correction of the facts challenged;
...”
“8. Settlement of disputes
If a medium refuses a request to make a reply public, or if the reply is not made public in a manner satisfactory for the person concerned, the possibility should exist for the latter to bring the dispute before a tribunal or another body with the power to order the publication of the reply.”
The relevant extracts from the Printed Media (Press) Act provide:
“... It shall be prohibited to use the printed mass media for:
– an interference with the private life of citizens, or an attack on their honour and dignity;
...”
“Citizens, legal entities and State bodies and their legal representatives shall be entitled to demand the rectification of information published about them or data that do not correspond to the truth or defame their honour and dignity.
If the editorial board has no evidence that the information published by it corresponds to the truth, it must rectify this information at the plaintiff’s request in the next issue of the printed media or publish a rectification on its own initiative. ...
The editorial board shall refuse to publish the reply if it:
1. violates the provisions of section 3 of this Act;
...
The editorial board shall within a month of receipt of the reply ... inform the applicant in writing ... of the refusal to publish the reply, indicating the grounds for such a refusal ...”


ITEMID: 001-97518
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KOPKA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Markus Kopka, is a German national who was born in 1976 and lives in Planegg. He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
, may be summarised as follows.
The applicant is the father of two children, born in 2003 and 2005. Since the couple's separation in 2007 the children have been living with their mother.
On 25 July 2007 the mother lodged a request to be granted sole parental authority over the children in order to return with them to her country of origin, Peru.
On 3 December 2007 the Munich District Court (Amtsgericht) rejected the request.
On 9 May 2008 the Munich Court of Appeal (Landgericht) quashed the District Court's decision and granted the mother sole parental authority over both children.
On 20 May 2008 the applicant lodged a complaint which was rejected by the Munich Court of Appeal on 30 June 2008.
On 13 August 2008 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication. This decision was served on the applicant's counsel on 18 August 2008.