ITEMID: 001-59452
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SHANAGHAN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 2;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 11. The facts of the case, in particular concerning the circumstances surrounding the death of Patrick Shanaghan on 12 August 1991, are in dispute between the parties.
12. Patrick Shanaghan was a thirty-year-old Catholic and active member of Sinn Fein when he was killed.
13. The Royal Ulster Constabulary (the RUC) suspected him of being an IRA member and that he was involved in terrorism. Between 15 April 1985 and 19 May 1991 he was arrested and detained pursuant to investigations into acts of terrorism in Northern Ireland. Six of the ten arrests resulted in detention for four or more days. He was never charged with any crime.
14. Patrick Shanaghan gave several written statements to his solicitors alleging physical assaults by RUC officers while in custody, including being punched in the back, punched under the chin with a clenched fist, stabbed in the throat with extended fingers, slapped in the face, having his arms wrenched back and forth repeatedly, being forced to keep a crouched position for hours, having his head struck against a wall, and being hit and kicked in the testicles. The applicant alleged that on several occasions RUC detectives threatened to kill her son during interrogations, for example, by telling him that “Loyalists in Castlederg know you now and they'll get you”.
15. During his detention in Castlereagh from 9 to 15 April 1986, it was recorded that Patrick Shanaghan complained to a doctor that he had been ill-treated – this referred to the pulling of his hair and the forcing back of his fingers. The doctor reported this to the custody sergeant, who invited Patrick Shanaghan to make a written statement. Patrick Shanaghan declined to reply. He also declined to reply when the custody sergeant asked him if he would be willing to attend a police disciplinary hearing.
16. On 4 April 1989, Patrick Shanaghan instituted proceedings against the Chief Constable of the RUC for alleged assault, battery, trespass to the person, unlawful arrest and unlawful imprisonment in respect of his detention from 9 to 15 April 1986. These were discontinued by him on 3 September 1990.
17. The applicant also claimed that there was an attempt on Patrick Shanaghan's life, on 17 February 1989, but that he managed to escape. The RUC were called but no charges were brought against a suspect for the murder attempt. When Patrick Shanaghan was arrested a year later, in February 1990, he publicly stated that RUC officers repeatedly mentioned this murder attempt during interrogation and one officer claimed, “We won't miss next time”.
18. The RUC warned Patrick Shanaghan twice that he was under potential threat from loyalist paramilitary groups. On 10 December 1990, a RUC detective informed him that security force documentation containing information about him, including a photographic montage, had accidentally fallen out of the back of an army vehicle. He was advised to take measures for his personal safety as there was a risk that the material had come into the hands of loyalist paramilitaries. A letter dated 11 January 1991 was sent to the RUC by Patrick Shanaghan's solicitors who requested, as a matter of urgency in order to assess the risk to his life, information relating to the documentation, including the type of information lost, dates when the information was first recorded, the exact date and under what circumstances it went missing, copies of photographs and addresses included in the files, and information in relation to the social movement and employment of persons involved in handling the files. On 29 July 1994, over three and a half years later, the RUC responded to this letter by stating that the police investigation was concluded and that the document had been accidentally lost by the Army.
On 27 April 1991, Sergeant Norden of the RUC called at Mr Shanaghan's home and informed him that he had received information to suggest that he was being targeted by loyalists.
19. The Government gave further details about the loss of the photographs. They stated that on 10 December 1990 during the journey of an army patrol vehicle from Rockwood Base to Hump Vehicle Checkpoint near Strabane in County Tyrone, the rear doors of the vehicle fell open and a helmet, armoured vest and combat suit belonging to one of the drivers fell from the vehicle. The jacket of the combat suit contained three terrorist recognition photographic montages comprising a total of 38 photographs, including some of Patrick Shanaghan. Upon arrival, it was discovered that the said equipment was missing and a search carried out of the route, which resulted in the recovery of the helmet. The officer responsible for the missing equipment was cautioned and interviewed by the Special Investigation Branch about the loss of the photographic montages. He was subsequently reported and disciplinary proceedings instituted against him. The officer attended a disciplinary interview with his Brigade Commander. No formal disciplinary sanction was recorded as imposed, although the Government stated that it was possible that he received a formal rebuke which would not have been recorded. The RUC informed Patrick Shanaghan promptly of the loss of the photographs. There was no evidence who, if anyone, recovered the photographs or that they played any later role in events.
20. Patrick Shanaghan was stopped and questioned by RUC and UDR officers on a daily basis. The Shanaghan family home, which the applicant shared with her son, was searched sixteen times between 1985 and 1991. No illegal material was ever found. According to the applicant, sometimes the RUC would not even enter certain rooms indicating that the search was not a concerted effort to locate and seize illegal material but was carried out solely to harass the family.
21. At about 8.30 a.m. on 12 August 1991, Patrick Shanaghan was driving his van to his job when he was shot dead by a masked gunman. About twenty shots had been fired into the van as it passed down the Learmore Road in the direction of Castlederg.
The UFF (Ulster Freedom Fighters – a loyalist organisation) later claimed responsibility for the murder in the local press.
22. RUC officers arrived at the scene shortly after the shooting was reported. A scene of crimes officer attended the scene and recovered bullet casings and glass samples. The scene was photographed, including the tyre impressions. These items were analysed by a member of the Northern Ireland Forensic Science Laboratory. The applicant alleged that the behaviour of the police at the scene was not consonant with any concern for her son's life or proper police procedures, claiming that no ambulance was called to the scene and that the police prevented a priest approaching to give the last rites. The Government stated that no ambulance was called as it was apparent that an ambulance could not have assisted Patrick Shanaghan. When the priest arrived, he was initially asked to go to Incident Control Point before approaching the car, to enable the officers to make the necessary arrangements for the preservation of the evidence at the scene.
23. At 2.30 p.m. on the same day, a post mortem examination disclosed that Patrick Shanaghan had died from a bullet wound to the chest.
24. The police attempted to identify potential eye-witnesses by speaking to all those present at the scene, conducting house to house enquiries, setting up vehicle check points and making press appeals for witnesses to come forward. They also interviewed the police officers who had been attending a road traffic accident to which personnel had been diverted shortly before the shooting occurred. The Government stated that there had been nothing suspicious in the conduct of the police in this respect. Three cars had been tasked to attend the road traffic accident at the village of Killen, it being normal practice for more than one vehicle to respond due to the risk of attacks on the security forces by the Provisional IRA.
25. Shortly after the shooting, the RUC discovered a car which they believed had been used by the people involved in the shooting. However, a forensic and fingerprint examination disclosed no evidence to connect it with any person suspected of the murder. Enquiries showed that the car had been recently bought for cash by unknown persons from a private vendor.
26. As later revealed in the inquest, the investigating police officer believed that he knew the identity of the persons involved in the killing but had no evidence to prove it. Several suspects had been arrested and interviewed but no evidence of admission had been obtained from them.
27. On 26 January 1995, the applicant accepted the sum of 25,520 pounds sterling from the Criminal Injuries Compensation Scheme in respect of the death of her son.
28. An inquest into the killing was opened on 26 March 1996, over four and a half years after the murder. The RUC file had been transmitted to the Coroner on 14 January 1994. The delay in their inquiries resulted, according to the Government, from the extent of other criminal activities requiring police attention in the Castlederg area at that time. The inquest was further delayed to February 1996 pending the completion of further inquiries required by the Coroner.
29. No explanation was given to the Shanaghan family to account for the delay. During this period, the family had not known whether any murder investigation had been conducted by the police and were not provided with any indication as to the nature of the RUC's findings, if any, as to how the applicant's son had died.
30. The inquest was heard over six days, between 26 March and 20 June 1996. It was presided over by the Coroner who sat with a jury and was assisted by a lawyer. The RUC were represented by counsel and a solicitor.
31. During the inquest, the solicitor acting for the family of Patrick Shanaghan sought to introduce evidence in support of allegations that the RUC had prior knowledge that he was to be murdered, that the RUC had made threats against him and that the police investigation had been inadequate. This consisted of evidence from a forensic science consultant who criticised the RUC for not taking a plaster-cast of car tyre impressions found at the scene of the crime, and the oral testimony of D.C. who claimed to have been told by Patrick Shanaghan of threats to his life made by RUC officers and who had heard such threats made by officers when he himself was in custody. When the Coroner accepted that the evidence should be admitted, the RUC Chief Constable applied for judicial review of those decisions. On 18 June 1996, the High Court quashed the Coroner's decision, holding that:
“... it is now well-settled in the jurisprudence on this topic that a Coroner's function is not, and one may say emphatically not, to conduct a wide-ranging inquiry into the broad circumstances in which a deceased has met his death. It is now clearly established by the decisions to which I have referred that the word “how” should receive the connotation “by what means” and it seems to me ... that it cannot be the case that the evidence in relation to the calibre of the police investigation - the quality of the police investigation – touches upon the means by which Mr. Shanaghan was killed. Rather it is directly relevant to the possible criticism of the standard of the police investigation and that ... goes well beyond the scope of the inquiry of the Coroner. By the same token I consider that the evidence ... from Mr [D.C.] ... is not germane to the question which the Coroner and the jury must decide and that is by what means the deceased met his death. Evidence has already been given without apparent challenge that the deceased was the target of loyalist terrorists before he was murdered. That evidence has not been disputed and is no way controversial and in those circumstances it appears to me that the only issue which Mr [D.C.]'s evidence could shed light upon is whether these threats were uttered by police officers. That, for the reasons I have already referred to, is not a matter for the Coroner's inquest to enquire into ...”
32. The Coroner refused to admit in evidence statements made by Patrick Shanaghan to his solicitors. The applicant stated that her original statement was edited by the RUC to exclude references to police collusion when it appeared in a Coroner's deposition.
33. On 20 June 1996, the Coroner's Inquest issued the verdict that Patrick Shanaghan had died on 12 August 1991 on Learmore Road in Castlederg from a bullet wound to the chest.
34. On 14 July 1996, the applicant made a complaint about the conduct of the RUC at the scene of the shooting in denying Dr Stewart access to the body and in failing to call an ambulance. This complaint was investigated by an assistant chief constable, under the supervision of the Independent Commission for Police Complaints (the ICPC), as a result of which the Inspector concerned was given advice which was recorded in the Divisional Discipline Book.
35. A Superintendent of the Complaints and Discipline Section of the RUC made attempts to investigate the allegations made by D.C. that, during an interview with police, RUC officers had made threats against Patrick Shanaghan (see paragraph 31 above). By letter of 2 October 1996, D.C.'s solicitors replied that their client would not make a statement concerning Patrick Shanaghan as none had been sought at the time of the incident. Attempts were made to take statements from three other witnesses mentioned at the inquest, only one of whom agreed. The RUC officers who had interviewed D.C. on 14 and 15 May 1991 were themselves interviewed.
36. On 26 June 1997, a copy of the unofficial inquiry report was sent by the applicant's daughter to the Secretary of State for Northern Ireland (see below, concerning the unofficial inquiry). She complained of the failure to make a plaster cast of the tyre tracks at the scene and that Constable D. had said that he had been sent to the scene of the shooting at 8 a.m. before it had taken place. As a result, the RUC conducted further enquiries under the supervision of the ICPC and the RUC subsequently reported to the Director of Public Prosecutions (the DPP).
37. On 16 July 1997, the ICPC wrote to the applicant's daughter and son-in-law informing them that the ICPC was satisfied by the police investigation which had taken place.
38. On 30 November 1998, the ICPC wrote to the applicant's daughter to inform her that Constable D. would be spoken to about the error which he had made as to the time at which he was detailed to the scene but that no other disciplinary proceedings would be taken in respect of the matters complained of on 26 June 1997. They stated that they were satisfied with the action taken.
39. In January 1999, having considered the results of the RUC's further enquiries in the light of the unofficial enquiry, the DPP decided that there should be no prosecution in relation to the shooting.
40. A community inquiry into the circumstances surrounding the murder was organised by family and friends after the conclusion of the inquest in the hope that the whole truth about the murder could be revealed. The inquiry, conducted by the Castlederg-Aghyaran Justice Group and chaired by a retired United States Judge, Andrew Somers, heard thirteen witnesses over the period from 17 to 19 September 1996. The witnesses included family, local residents and friends of the deceased. Evidence was given alleging that police officers had frequently stopped Patrick Shanaghan in the street and issued threats, that the police warned people to keep away from him or they would end up being shot, that police officers made comments to persons in custody before the incident that Patrick Shanaghan would be targeted and, after the incident, claimed that they had had him killed. Two witnesses claimed that they had seen Patrick Shanaghan still moving after the shooting had occurred. The Judge concluded that the applicant had been murdered by the British Government and, more specifically, with the collusion of the RUC.
41. On 22 July 1994, the applicant issued a writ against the Chief Constable of the RUC and, by amendment of 15 September 1994, against the Ministry of Defence also. The writ was served on 17 July 1995. In the proceedings, the applicant claimed damages for loss and damage sustained by her and the estate of her son by reason, inter alia, of negligence, breach of confidence and misfeasance in public office relating to the storing, handling and use of information.
On 19 July 1995, the defendants gave notice of intention to defend the proceedings. No further steps have been taken.
42. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died.
43. Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8).
44. Rules 12 and 13 of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.
45. Where the Coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.
46. The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:
“15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely: –
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.
16. Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.”
47. The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict.
48. However, in Northern Ireland, the Coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.
49. Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased.
50. The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.
51. In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.
52. Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:
“... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”
53. Domestic courts have made, inter alia, the following comments:
“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how...the deceased came by his death', a far more limited question directed to the means by which the deceased came by his death.
... [previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is 'To allay rumours or suspicions' this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported)
“The cases establish that although the word 'how' is to be widely interpreted, it means 'by what means' rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357)
“... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial...
It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner ex parte Thompson (1982) 126 SJ 625)
54. There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence.
55. Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest.
56. Paragraph 7 of the Circular stated:
“The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis.”
Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example:
– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary);
– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and
– personal information about third parties not material to the inquest.
Paragraph 11 envisaged that there would be non-disclosure of the investigating officer's report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate.
57. The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 with the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998.
58. The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC.
59. The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted.
60. The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)).
61. If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)).
62. The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years' experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia:
“(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;
(b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;
(c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.”
63. Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows:
“(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.
(3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to -
(a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ...
and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.”
64. According to the Government's observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that:
(1) if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice;
(2) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation;
(3) the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses);
(4) in a substantial category of cases decisions not to prosecute were based on the DPP's assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications;
(5) there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants).
65. Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court.
In R. v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery:
“From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute:
(1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100);
(2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or
(3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”
66. In the case of R. v. the DPP and Others ex parte Timothy Jones the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury – required further explanation.
67. R v. DPP ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000) concerned the DPP's decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death – there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted:
“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”
As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said:
“It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake's conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner's Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director's decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court's expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake's conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.”
On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute.
68. In the Matter of an Application by David Adams for Judicial Review, the High Court in Northern Ireland on 7 June 2000 considered the applicant's claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that not duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim's families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (paragraph 67 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (paragraph 65 above) were infringed. Notwithstanding the findings in the civil case, they were not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted.
69. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
70. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.
71. Other relevant provisions read as follows:
Paragraph 10
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
Paragraph 22
“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”
Paragraph 23
“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”
72. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (UN Principles on Extra-Legal Executions) provides, inter alia, that:
“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...”
73. Paragraphs 10 to 17 of the UN Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths.
Paragraph 10 states, inter alia:
“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...”
Paragraph 11 specifies:
“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.”
Paragraph 16 provides, inter alia:
“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...”
Paragraph 17 provides, inter alia:
“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...”
74. The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in section B on the “Purposes of an inquiry”:
“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:
(a) to identify the victim;
(b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;
(c) to identify possible witnesses and obtain statements from them concerning the death;
(d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;
(e) to distinguish between natural death, accidental death, suicide and homicide;
(f) to identify and apprehend the person(s) involved in the death;
(g) to bring the suspected perpetrator(s) before a competent court established by law.”
In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established...”.
75. In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1999, published on 13 January 2000, the European Committee for the Prevention of Torture (the CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treating persons. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness:
The chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority.
It stated at paragraph 55:
“As already indicated, the CPT itself entertains reservations about whether the PCA [the Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS for consideration of whether or not criminal proceedings should be brought.
In any event, the CPT recommends that the role of the 'chief officer' within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer's functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer's report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer's report, and liase with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way.
57. ...Reference should also be made to the high degree of public interest in CPS [Crown Prosecution Service] decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.”
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 13
14


ITEMID: 001-92556
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: NARENJI HAGHIGHI v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Esmail Narenji Haghighi, is an Iranian national who was born in 1969 and lives in Teheran. He was represented before the Court by Mr G.J. van der Graaf, a lawyer practising in Arnhem.
The applicant first entered the Netherlands on 18 July 1994. On 9 August 1994 he applied for asylum. His request was denied in final instance on 10 September 1996.
On 24 May 1997 the applicant was convicted of shoplifting and sentenced to a fine of 50 Netherlands guilders (NLG) (22.73 Euros (EUR)).
On 14 January 1998 the applicant filed a second request for asylum.
That same year the applicant started cohabiting with a Dutch national with whom he had started a relationship. The applicant’s partner suffers from a psychiatric disorder.
On 26 July 1999 the applicant accepted a deal proposed by the public prosecutor and paid NLG 240 (EUR 109.10) in relation to an offence of shoplifting committed on 16 June 1999.
His second request for asylum was denied in final instance on 15 August 2000. However, the applicant did not at that time leave the country and neither was he forcibly expelled.
On 27 July 2001 the applicant was convicted of defamation, destruction and attempted aggravated assault, committed on 29 November 1999, and sentenced to a suspended term of two months’ imprisonment as well as to 100 hours’ community service.
In March 2002 the applicant married his partner and on 14 August 2002 he applied for a residence permit for the purpose of residing with his wife (verblijfsvergunning regulier voor bepaalde tijd voor verblijf bij echtgenote).
On 29 January 2004 the applicant’s request was rejected by the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie). The Minister considered that the applicant was not in possession of a provisional residence visa (machtiging tot voorlopig verblijf). Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person’s country of origin. The Minister further considered that the applicant was not in possession of a valid document to cross international borders (document voor grensoverschrijding). The applicant lodged an objection (bezwaar) against this decision.
He subsequently returned to Iran and filed a request for a provisional residence visa with the Dutch representation in Teheran on 4 May 2005. On 1 August 2005 the applicant’s request was rejected by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken), who considered that the applicant had repeatedly committed criminal offences and that he had already committed his first offence two years after arriving in the Netherlands. Furthermore the applicant had continued to commit criminal offences even after he had started cohabiting with his partner. The Minister of Foreign Affairs therefore also dismissed the applicant’s argument that he should be granted a residence permit in view of the medical condition of his wife, as he should have realised that the commission of criminal offences would affect his chances of a residence permit. Furthermore, it was considered that the applicant had never had legal residence in the Netherlands and it was thus for him to bear the risks involved in starting family life at that time. The Minister of Foreign Affairs therefore found that, in these circumstances, Article 8 of the Convention did not impose a positive obligation on the State of the Netherlands to allow the applicant to reside in that country. Moreover, it had not appeared that there was an objective obstacle standing in the way of family life being enjoyed outside of the Netherlands.
On 19 August 2005 the applicant filed an objection (bezwaar) against the decision to deny him a provisional residence visa. He argued that the offences he had committed were only minor ones and that he had not reoffended since his last conviction of 27 July 2001. In the view of the applicant, his and his wife’s interests in being able to enjoy family life in the Netherlands outweighed public order interests. In this context he also pointed to a letter drawn up by a social-psychiatric nurse to his lawyer, saying that the applicant’s wife was suffering from a schizoaffective disorder, bipolar type, and that she had had to be admitted to a closed ward of a clinic after her husband had returned to Iran as the stress, loneliness and despair concerning the uncertainty about his return had become too much and had led her to take an overdose of pills. According to the nurse, it was realistic to expect that her situation would improve if her husband returned as he was the only stable factor in her life and exerted a positive influence on her. Although the nurse stated that a long-term stay of the applicant’s wife in Iran hardly appeared to be an option, this was ultimately for her to decide.
On 30 March 2006 the Minister of Foreign Affairs dismissed the applicant’s objection, considering that the situation of the applicant’s wife had already been taken into account in the original decision and the applicant had not submitted any new facts or circumstances leading to the conclusion that the condition of his wife should be deemed a special circumstance. Moreover the Minister considered that the criminal offences carried a certain gravity, regardless of the fact that it had been five years since the last offence had been committed. Finally, the Minister concluded that sufficient consideration had been given to the applicant’s family life in the balancing of the public and private interests involved.
In his subsequent appeal (beroep) against this decision, the applicant argued that the Minister of Foreign Affairs had failed to motivate properly why the condition of his wife did not constitute a special circumstance. According to the applicant, the Minister had not correctly balanced the interests at issue.
The objection which the applicant had lodged against the decision to refuse him a residence permit was rejected by the Minister for Immigration and Integration on 11 May 2006. The Minister considered that the mere fact that the applicant was now in possession of a valid passport did not qualify him for a residence permit as he still did not posses the required provisional residence visa.
On 19 May 2006 the applicant filed an appeal against this decision also, arguing that it was contrary to the principle of fair play to refuse him a residence permit for the sole reason that he did not hold a provisional residence visa. The applicant further submitted that the interests at stake had not been properly balanced since his and his wife’s interests ought to outweigh the interest served by the mere formality of obtaining a provisional residence visa.
On 24 October 2006 the Regional Court (rechtbank) of The Hague, sitting in Arnhem, delivered its verdict in both the appeal against the refusal of a residence permit and the appeal against the refusal of a provisional residence visa. Regarding the application for a residence permit the Regional Court considered that this had been rejected on the basis of the legal provisions in force at the time the application had been lodged, and which required that the applicant hold a provisional residence visa. The court further held that the question whether or not Article 8 of the Convention should lead to the applicant being admitted to the Netherlands fell to be determined in the proceedings relating to the provisional residence visa rather than in the context of the question whether or not the lack of such a visa should be held against the applicant.
In its second decision of 24 October 2006, relating to the refusal to issue the applicant a provisional residence visa, the Regional Court considered that the Minister had had sufficient regard to the psychological problems of the applicant’s wife. It further found that it had not been unreasonable for the Minister to attach more weight to the interests of the community than to the private interests of the applicant. The Regional Court took into account that the applicant had been convicted of a number of criminal offences; that he had not held a residence permit when he started a relationship in 1998 or when he married in 2002; that he had committed offences during the time he had been cohabiting; that the applicant’s wife was thus aware of the fact that she was living with, and subsequently married, a repeat offender; and that it could not be said that the applicant had committed minor offences only. In the opinion of the court, the State was also not under a positive obligation to admit the applicant. In this context it inter alia considered that it had not appeared that there were any objective obstacles to family life being continued in Iran, the mere claim that settlement in the latter country was not a realistic option for the applicant’s wife not having been substantiated.
On 23 November 2006 the applicant lodged a further appeal (hoger beroep) against both judgments of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). In his appeal in the procedure against the Minister for Immigration and Integration, the applicant argued inter alia that the Minister was obliged to examine the application for a residence permit also in the light of Article 8 instead of restricting that examination to the proceedings relating to the request for a provisional residence visa.
In the accompanying appeal in the procedure to deny him a provisional residence visa, the applicant argued that insufficient account had been taken of his wife’s psychological problems, that the Regional Court had failed to acknowledge that the original decision by the Minister of Foreign Affairs did not contain a proper balancing of the interests involved and that no weight had been given to the fact that the applicant and his wife were married. The applicant further submitted that no proper examination had been conducted of the question whether Article 8 entailed the existence of a positive obligation for the Dutch authorities in the present case. Furthermore the Regional Court had failed to conclude that the original decision did not contain a proper motivation as to why the applicant’s (suspended) sentences could lead to the conclusion that public order grounds carried more weight than the personal interests of the applicant and his ill wife, especially considering that the applicant had not re-offended since 16 February 2000.
On 7 March 2007 the Council dismissed both appeals on summary grounds for not raising any points of law.
It appears from the case file that the applicant’s wife has visited her husband in Iran a number of times.
The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are set out inter alia in the Aliens Decree 2000 (Vreemdelingenbesluit 2000).
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
The Government pursue a restrictive immigration policy owing to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
Pursuant to article 3.20 of the Aliens Decree 2000, a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security. In this respect, article 3.77 paragraph 1 sub c of the Aliens Decree 2000 reads in its relevant part that a threat to public order exists when:
“c. the alien has been convicted of a criminal offence and sentenced to either a nonsuspended prison sentence or custodial measure, a community service order or nonsuspended financial penalty, or if, in relation to a criminal offence, the alien has accepted an out-of-court settlement or if a punishment order has been issued against him by a public prosecutor.”
Under the relevant provisions of the Criminal Code (Wetboek van Strafrecht), shoplifting attracts a prison sentence of up to four years (article 310), attempted aggravated assault, a prison sentence of up to 5 years and 4 months (article 311), destruction, a prison sentence of up to 2 years (article 350) and defamation, a prison sentence of up to 3 months (article 266).


ITEMID: 001-81680
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF F AND M v. FINLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 5. The applicants were born in 1953 and 1950 respectively.
6. F and M are the father and the mother of D, a girl born on 10 June 1984. On 4 June 1991 she was admitted to the child psychiatric department of a hospital for a six-week period for observation. During the observation she mentioned that she had played “finger games” with her father. According to the parents, D had referred to hobby crafts. It appears that the psychologist and the social welfare authorities interpreted this as sexual petting.
7. D received treatment at the hospital from 5 August 1991 to 12 August 1994, following which she went to live in a substitute family. The applicants were allegedly refused access to D during her hospitalisation.
8. Meanwhile, on 18 November 1991 the Social Welfare Board (sosiaalilautakunta, socialnämnden) decided to place D in public care on account of a suspicion that she had been sexually abused. The applicants unsuccessfully challenged the public care decision in the administrative courts. It appears that the Supreme Administrative Court rendered its decision in 1995.
9. The social welfare officials allegedly told the applicants that the girl would return to live with them if they assumed responsibility for the situation and acknowledged the abuse. Although the applicant father was allegedly not guilty of any abuse, on 23 October 1991, he admitted the abuse to the social welfare officials and a psychiatrist in order to have D return home. He did not describe the nature of the abuse. On 7 May 1992 he withdrew his admission as he felt that he could not bear having this lie on his conscience for the rest of his life.
10. In 1995 the applicants lodged an application with a view to having the public care terminated. In the course of those proceedings, on 21 March 1995, the Social Welfare Board reported to the police the alleged sexual abuse committed in 1990-91. As to the fact that several years had passed since the initial suspicion had arisen, the Board explained that it had refrained from taking criminal action in order to afford the applicants an opportunity to seek therapy. If the therapy had proved successful, the public care could have been terminated and D could have returned to live with the applicants. The Board apparently considered that the applicants' therapy had proved unsuccessful.
11. As noted above, the alleged sexual abuse was reported on 21 March 1995. On 19 October 1995 the applicant father was questioned by the police. He denied any abuse. D, now aged 11, was not questioned during the pre-trial investigation. Nor was the father asked whether he wished to have questions put to the girl. The investigation was completed on 17 February 1997.
12. On 27 January 1998 the public prosecutor brought charges against the father for sexual abuse of a minor and for sexual intercourse with a descendant (lapseen kohdistuva haureus ja sukurutsa jälkeläisen kanssa, otukt med barn och blodskam med avkomling).
13. In its written submission of 5 June 1998 to the District Court (käräjäoikeus, tingsrätten) the Social Welfare Board claimed compensation on behalf of D. It also submitted a written medical opinion by Dr S.V., a psychiatrist, according to which the hearing of D before the court would harm her development. It appears that Dr S.V. had not seen D since 1992 or 1993.
14. On 26 August 1998 the applicant father was summoned to the District Court hearing. On 17 September 1998 he submitted his written submission, denying the charges. He criticised the Social Welfare Board for not having reported the alleged abuse sooner, given the fact that the report had been based on a suspicion which had first arisen in 1991. Further, he requested that D, now aged 14, be heard before the court.
15. At the hearing on 28 September 1998 he denied the charges and maintained that D should be heard either before the court or elsewhere. The court refused the request, considering that the hearing of the girl before the court would not be in her best interests having regard to the time that had passed since the alleged offences and the therapy that she had received. The court made reference to the above written medical opinion prepared by Dr S.V.
16. The court received oral evidence from the social welfare director L.K., the applicant mother, Dr S.V., E.V, a psychologist, Dr H-O.P., a psychiatrist, A.V., a social worker, D's substitute mother and D's teacher. E.V. gave evidence to the effect that she had heard about the events from D herself. D had said that her father had tickled her genital area and that she had tickled his penis which had risen following which he had urinated on her hand. She had also said that he had put his penis in her mouth and kept it there for a long time until he had urinated into her mouth. D had also lain on top of her father and his penis had been on her genital area. Dr H-O.P., L.K. and A.V. testified to having been present when the applicant father had admitted the alleged abuse. None of the witnesses had made any observations on the alleged acts.
17. The court noted that the evidence produced before it was based on D's statements to the medical personnel of the institution in which she had been treated, and on circumstances that had been observed during the observation. There was no forensic evidence as to the alleged abuse. On the other hand, there was the admission by the applicant father which had seemed authentic and true to the above witnesses. The court concluded that the statements of Dr S.V. and E.V. proved that the applicant father was guilty of the alleged offences. Having regard to the seriousness of the charges, his admission alone did not suffice to prove his guilt. However, it did not lack significance since according to A.V. and L.K. it had been made voluntarily without any pressure having been exercised on him; nor had he been misled.
18. On 8 October 1998 the District Court convicted the applicant father as charged and sentenced him to a suspended term of one year and two months' imprisonment. He was ordered to pay compensation plus the legal costs of D's representation.
19. On 9 November 1998 the applicant father appealed, maintaining that D should be heard. He also requested that the National Authority for Medico-legal Affairs (terveydenhuollon oikeusturvakeskus, rättsskyddscentralen för hälsovården) be invited to interview her.
20. The Court of Appeal (hovioikeus, hovrätten) refused the requests. It however held an oral hearing and received the same oral evidence as had been presented to the lower court. Dr S.V. now testified to having met D some weeks before the Court of Appeal hearing and to having asked her about the alleged abuse. D had replied that her father had not abused her sexually in any way. The Court of Appeal also received oral evidence from the applicant father.
21. On 1 July 1999 the Court of Appeal amended the District Court's judgment in that it rejected the charge of sexual intercourse with a descendant. It upheld the rest of the lower court's judgment, endorsing its reasoning. It did not comment separately on the testimony of Dr S.V.
22. On 30 August 1999 the applicant father appealed further, maintaining that D should be heard in particular as she had denied the sexual abuse to Dr S.V. some weeks before the Court of Appeal hearing. He repeated his request that the National Authority for Medico-legal Affairs be invited to interview the girl. He also submitted a letter from D in which she stated that nothing improper had taken place between her and her father.
23. On 14 December 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal insofar as the compensation claims were concerned and received the Social Welfare Board's reply to the appeal.
24. On 2 May 2000 the Supreme Court invited an expert opinion from the National Authority for Medico-legal Affairs on, inter alia, whether D could be heard before the court. On 12 September 2000 the Authority received an expert statement running to 7 pages from its standing expert, Dr E.R. It also invited an opinion by the psychiatrist who had treated D, Dr S.V. It was received on 26 February 2001. As these opinions were partly contradictory in respect of the question whether D could be heard before the court, the Authority requested, on 5 March 2001, Dr E.R.'s comment on the opinion of Dr S.V. It was received on 28 March 2001. The Authority submitted its opinion to the Supreme Court on 4 April 2001 following which it was communicated to the parties for comment.
25. On 12 December 2001 the Supreme Court refused leave to appeal insofar as the criminal aspects of the case were concerned. As to the compensation claims, it quashed the lower courts' judgments and remitted the case to the District Court as the Social Welfare Board had lacked competence to represent D in the proceedings.
26. On 14 December 2001 the case was restored to the District Court's case-list.
27. On 16 September 2002 the court, having held an oral hearing at which it heard D, among others, ordered the applicant father to pay compensation to D in the amount of 20,182 euros plus interest from 4 August 1991.
28. The applicant father and D appealed. On 24 August 2004 the Court of Appeal, having held a hearing, revoked the lower court's judgment and rejected the claims. In those proceedings D now aged 20 testified that she had never been sexually abused by her father. No one appealed.
29. Meanwhile, on 10 June 2002 when D reached the age of majority she moved back in with her parents.
30. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).
31. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3)). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8).
32. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1)). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34).
33. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42).
34. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony.
35. A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948).
36. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten.
37. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence.
38. The Code of Judicial Procedure was amended with effect from 1 October 1997 to the following effect. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit as evidence such a statement, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997).
39. The Code of Judicial Procedure was again amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence.
40. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows:
“(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and:
(i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and
(ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development.
(2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997).
(3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.”
41. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows:
“The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-84482
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PILCIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1951 and is presently serving a prison sentence in Lepogalva State Prison.
5. Following the institution of criminal proceedings against the applicant, he was apprehended on 31 July 2001 and placed in pre-trial detention in Zagreb County Prison (Okružni zatvor Zagreb), where he had stayed until 24 February 2003. After that date, having being convicted of murder, attempted murder, forgery and robbery, he was sent to serve the remainder of his sentence of thirty years and six months' imprisonment in Lepoglava State Prison.
6. According to medical documentation submitted by the parties, the applicant suffers from kidney stones, varicose veins, liver damage and a number of spinal ailments such as scoliosis (curvature of the spine), lordosis (inward curve of the lower back), discopathy (cervical disc injury) and discarthrosis (structural and functional failure of the discal joint).
7. The applicant's medical record, kept in Lepoglava State Prison, and additional medical documentation submitted by the parties provides the following information:
8. A copy of a medical report drafted at Zagreb Prison Hospital on 24 January 2002 specifies that the applicant was suffering from one stone in his right ureter (ureters are ducts that carry urine from the kidneys to the urinary bladder) measuring about 3-4 millimetres, and two stones in his left kidney, each measuring about 1.5 centimetres. It was recommended that the applicant be given painkillers and be seen by a urologist.
9. After being incarcerated in Lepoglava State Prison the applicant was seen by a prison doctor for his kidney and spinal ailments on five occasions during the period from 28 February to 28 May 2003. The applicant was regularly given urological tea for his kidney ailment and, in addition, on each occasion he was given various spasmolytics to prevent or relieve spasms. For the pain associated with his spinal ailments, the applicant was prescribed painkillers, including two different types of soothing gels. On 28 May 2003 the applicant was seen by a urologist in Varaždin, who found a stone in the applicant's left kidney and recommended his hospitalisation.
10. From 29 May to 4 July 2003 the applicant was hospitalised in Zagreb Prison Hospital, where a medical report was drafted, specifying that the applicant was suffering from three stones in his left kidney, measuring 1 centimetre each. It was recommended that surgery be carried out. The report notes that the applicant had been put on the waiting list of the Rebro Hospital in Zagreb and that the exact date of the operation was yet to be determined.
11. From his return to Lepoglava State Prison in July 2003 until 26 September 2005 the applicant was seen by the prison doctor on sixty-five occasions; on twenty of these he was given spasmolytics for the pain associated with his kidney ailment. He was also regularly given urological tea as well as painkillers for his spinal ailment.
12. The applicant was again hospitalised in Zagreb Prison Hospital from 26 to 30 September 2005. A medical report of 30 September 2005 specifies that the kidney stones from which the applicant was suffering required surgery, although not urgently, as they could not be treated by ultrasound waves (lithotripsy).
13. From his return to the prison until 31 March 2006 the applicant was seen by the prison doctor on twenty-nine occasions. Within that period he was given spasmolitycs for the pain associated with his kidney ailment on fourteen occasions. On 4 November 2005 the applicant underwent urological tests in the Zagreb Prison Hospital laboratory. On 17 November 2005 the applicant refused to go to Zagreb Prison Hospital. On 20 February 2006 a nurse from the prison reported that, during a telephone conversation with a surgeon from Zagreb Prison Hospital, she had been told that the applicant should not be sent there because they were not going to carry out the surgery. On 2 March 2006 the applicant again underwent urological tests in Zagreb Prison Hospital.
14. On 31 March 2006 the applicant was seen by a urologist in Varaždin Hospital. The diagnosis of kidney stones was confirmed and surgery in this respect was recommended, although not urgently.
15. From his return to the prison until 26 October 2006 the applicant was seen by the prison doctor on thirty-four occasions. Within that period he was given spasmolytics for his kidney aliment on six occasions. On several occasions he asked that the recommended surgery in connection with his kidney ailment be carried out.
16. The applicant was again hospitalised in Zagreb Prison Hospital from 26 October to 17 November 2006. A report drawn on the latter date specifies that the applicant was suffering from kidney stones and that there was no possibility of carrying out the relevant operation in the Zagreb Prison Hospital; it could only be carried out in an ordinary hospital. The applicant had been offered surgery for his varicose veins in Zagreb Prison Hospital, which he had refused, insisting on his return to the prison.
17. On his return to the prison the applicant was seen by the prison doctor on twenty-six occasions, mostly in connection with his spinal ailment. On one occasion he was given spasmolytics for his kidney ailment. He was prescribed a supplementary diet (pojačani obrok) from 1 December 2006 until 1 February 2007 and from 4 May to 1 August 2007.
18. On 30 August 2006 the applicant petitioned both the Varaždin County Court judge responsible for the execution of sentences and the Head Office of the Prison Administration complaining about the lack of adequate medical care for his various health problems, including those mentioned in paragraph 6 above.
19. The Head Office of the Prison Administration replied to the applicant's allegations by a letter of 12 December 2006, the relevant parts of which read as follows:
“...
Your medical record shows that since your arrival at Lepoglava State Prison on 24 February 2003, you have received regular treatment by the prison doctor.
On 28 February 2003 it was noted that you suffered from kidney stones and were on that account twice hospitalised in [Zagreb] Prison Hospital. It was further noted that you suffered from back-pain and varicose veins on your right shin. During your hospitalisation from 29 May to 4 July 2003 it was recommended that surgery be carried out and you were put on the waiting list of the Rebro Hospital in Zagreb.
Owing to frequent pain in the kidney area you were again hospitalised in [Zagreb] Prison Hospital from 26 to 30 September 2005 where a specialist established that your kidney stones could be treated by ultrasound.
You continued to receive regular treatment by the prison doctor and were prescribed adequate medical therapy. On 17 November 2005 you refused to be hospitalised and said that you would report when you wished to be hospitalised. Since you had refused hospitalisation, on 20 February 2006 it was communicated from [Zagreb] Prison Hospital that you were not going to be operated and it was recommended further that you be seen by a urologist in Varaždin. A prescription was issued for consultation with a urologist and prior laboratory tests. Laboratory tests showed the presence of blood in urine and signs of liver damage.
On 31 March 2006 you were seen by a urologist who found alterations in your kidneys, but established no need for an urgent surgical intervention. A CT [computer tomography] of your abdomen was planned and carried out on 20 April 2006. It showed no pathological alterations. You were twice seen by an internist in Lepoglava [State] Prison, who recommended that arrangements be made between the prison authorities and [Zagreb] Prison Hospital.
On 21 June 2006 you were sent for an X-ray examination in connection with frequent back-pain. Discopathy and discarthrosis were diagnosed. Deforming spondylosis was in an advanced stage. On 16 October 2006 a prescription for your hospitalisation in [Zagreb] Prison Hospital was issued, but you refused hospitalisation. Owing to frequent pain in your left kidney and your back you agreed to be hospitalised in [Zagreb] Prison Hospital from 26 October to 17 November 2006, when laboratory tests were carried out as well as an ultrasound examination of your liver, cholecyst, bile ducts, pancreas, spleen and kidneys. An X-ray examination showed that your heart and lungs were healthy. An X-ray examination of your abdomen showed two round calcareous shadows in the lower pole of your left kidney, which was an indication of the [presence of] stones. Laboratory tests showed further even and sufficient urinary flow in both kidneys. The ureters had adequate flow, lumen width and porosity; the urinary bladder was normal. The previously recommended surgery, despite having been scheduled for your stay at the hospital, was not carried out.
Possible surgery on your varicose veins was not carried out since you refused it, and you were returned to the prison at your request.
A CT [computer tomography] of your spine was recommended and the exact date was to be determined. A prescription in that respect was issued on 20 November 2006.
In our opinion, regular [medical] checks are needed in the Lepolgava [State] Prison infirmary as well as regular intake of the prescribed therapy, and an arrangement for another hospitalisation in [Zagreb] Prison Hospital is soon to take place with a view to carrying out the surgery for your kidney stones.
In view of the above [considerations] it has been established that you received adequate medical care in Lepoglava [State] Prison.”
20. The judge responsible for the execution of sentences likewise answered the applicant's allegation by a letter of 13 December 2006, the relevant parts of which read as follows:
“As to your complaint lodged on 31 August 2006 ... concerning your allegations that you had been denied hospital treatment in connection with a number of diseases ... I reply as follows:
...
The medical documentation submitted shows that, as early as 2003, you were hospitalised in [Zagreb] Prison Hospital in connection with kidney stones, pain in the back and varicose veins on your right shin. It was recommended that surgery be carried out, you were put on the waiting list of the Rebro Hospital [in Zagreb] and that the exact date of the operation was to be communicated. Owing to repeated pain in the kidney area and in order to continue the treatment, in 2005 it was established that the stones were to be broken by ultrasound. You then reported to the Lepoglava [State] Prison infirmary and received regular therapy for pain. On 17 November 2005 you were offered hospitalisation. However, it was communicated from Zagreb Prison Hospital not to send you there because you were not to be operated. On 31 March 2006 you were seen by a urologist in Varaždin, who established the cause of your kidney ailment and indicated that there was no need for urgent surgery. After that arrangements for your hospitalisation in [Zagreb] Prison Hospital took place and you were hospitalised from 26 October to 17 November 2006. There you were examined and laboratory [tests] showed toxic damage to your liver and the presence of stones in your kidneys. An x-ray showed that your heart and lungs were healthy and that you had so-called nephroliths in your kidneys.
According to [Zagreb] Prison Hospital, all treatment available there had been exhausted and in order to continue your treatment in an outside hospital it was necessary for an agreement to be reached between the prison and the hospital. There was a possibility that surgery be carried out in [Zagreb] Prison Hospital at the same time as surgery for your varicose veins, which you declined. You were returned to the prison where it was recommended that a CT [computer tomography] of lumbosacral spine be carried out, and a prescription was issued in that connection on 20 November 2006. The doctor also recommended regular checks in the prison infirmary and regular intake of prescribed therapy, and that an arrangement be made between the prison and the [Zagreb] Prison Hospital for your hospitalisation and eventual surgery for the kidney stones.
Therefore, your complaints concerning the alleged denial of hospital treatment are unfounded because the medical documentation shows that care was taken of your [need for] ambulant and hospital treatment. Your allegations concerning the prison authorities' hatred towards you are entirely unfounded.
...”
21. The applicant also submitted a copy of a letter of 15 September 2006 drafted by the registry of the Constitutional Court, stating that his application lodged with that court on 12 September 2006 had not been suitable for examination.
22. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows:
“No one shall be subjected to any form of ill-treatment...”
23. The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, while the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:
“(1) Inmates shall have the right to complain against an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...”
“(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
24. The Committee of Ministers
Recommendation No. Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies):
Section 46.1 of the recommendation provides as follows:
“Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.”
VIOLATED_ARTICLES: 3