ITEMID: 001-57456
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF CAMPBELL AND FELL v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 6-3-b;Violation of Art. 6-3-c;Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 8. The first applicant, Mr. John Joseph Campbell, is a United Kingdom citizen, born in Northern Ireland in 1944 and resident in England since 1965.
In November 1973, he was convicted of various offences, including conspiracy to rob and possession of a firearm with intent to commit robbery, and sentenced to ten years’ imprisonment. He was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison, Isle of Wight. He is now at liberty.
9. The second applicant, Father Patrick Fell, is a United Kingdom citizen, born in England in 1940. He is a Roman Catholic priest.
In November 1973, after being convicted of conspiracy to commit arson, conspiracy to commit malicious damage, and taking part in the control and management of an organisation using violent means to obtain a political end, he was sentenced to twelve years’ imprisonment. He too was subsequently detained in a number of different prisons and, on 16 September 1976, was in Albany Prison. He is now at liberty.
10. At all relevant times, both applicants were classified as "category A" prisoners (see paragraph 44 (a) below). The offences of which they were convicted were believed by the authorities to form part of, or to be connected with, Irish Republican Army terrorist activities. According to the Commission’s report, both applicants have consistently denied that they were members of that organisation.
11. On 16 September 1976, an incident occurred in Albany Prison. Before the Commission, there was considerable dispute between the Government and the applicants as to precisely what took place, notably as to the weapons and amount of violence used, but the following summary suffices for the present purposes.
Mr. Campbell, Father Fell and four other prisoners engaged in a protest at the treatment of another prisoner, by sitting down in a corridor of the prison and refusing to move. They were removed by prison officers after a struggle and in the process injuries were sustained by certain members of staff and by both applicants. Mr. Campbell, who had been more seriously injured, was transferred to Parkhurst Prison hospital for treatment and returned to Albany Prison on 3O September 1976.
12. The six prisoners involved in the above-mentioned incident were all charged with, and found guilty by the Prison Board of Visitors of, disciplinary offences against the Prison Rules 1964, as amended ("the Rules"; see paragraphs 26-33 below). The Board heard the cases on 24 September 1976, except that of Mr. Campbell who was then still at Parkhurst.
13. On 1 October 1976, immediately after his return to Albany Prison, Mr. Campbell was informed that he was charged with the disciplinary offences of mutiny or incitement to mutiny and doing gross personal violence to an officer, contrary to Rules 47 (1) and (2) (see paragraph 27 below). The first charge concerned his participation with the other prisoners in the incident; the basis of the second charge was an allegation that, on that occasion, he had struck an officer with a broomhandle.
A preliminary hearing before the Prison Governor (see paragraph 31 below) took place on 1 October, when the charges were referred to the Prison Board of Visitors. The latter heard the case, in private, on 6 October. The applicant had received, before both hearings, "notices of report" and, before the Board’s hearing, a copy of a form outlining its procedure (see paragraph 36 below). The "notices of report" in connection with the Board’s proceedings were issued at 8 a.m. on 5 October. One notice began as follows:
"A report has been made against you by [a prison officer] that at about 19.30 on 16 September 1976 at ‘D’ hall you committed an offence under paragraph 1 of Rule 47, i.e. mutiny."
The other notice began:
"A report has been made against you by [a prison officer] that at about 22.05 on 16 September 1976 at ‘D’ hall you committed an offence under paragraph 2 of Rule 47, i.e. did strike an officer with a broomhandle."
Both notices concluded as follows:
"Your case will be dealt with at adjudication tomorrow, when you will be given every opportunity to make your defence.
If you wish to reply to the charge in writing you may do so on the back of this form."
Mr. Campbell attended neither hearing. It is recorded that he declared prior to the Governor’s hearing that he would be prepared to attend only if he were legally represented. His request for legal representation before the Board was also refused, in accordance with the standard practice at the time (see paragraph 36 below). Before the Board met, he had been visited by its chairman and warned that it would proceed in his absence; the records state that he understood this warning and the charges against him. It appears that he did not expressly seek either an adjournment of the Board’s hearing or a consultation with a solicitor beforehand; under the then practice, a request of the latter kind would also have been unsuccessful (ibid.).
Before the Commission and the Court, Mr. Campbell gave additional reasons for his non-attendance: firstly, having learned of the outcome of the Board’s hearing on 24 September and having previous experience of such proceedings himself, he did not believe that he would receive a fair hearing and considered that his presence would be otiose; secondly, he was feeling very ill as a result of his injuries and, on 6 October, he was "in the punishment cell; lying on the floor; unable to walk; not being fed and in considerable pain". As regards the latter allegations, which were disputed by the Government, the applicant had been certified by the medical officer, before both hearings, to be fit for punishment. The Commission concluded that it was not established that Mr. Campbell was prevented from attending rather than that he had decided, for his own reasons, not to attend; it proceeded on the assumption that his absence from the Board’s hearing was a matter within his own responsibility.
14. Before the Board of Visitors, a plea of not guilty on each charge was entered on behalf of the applicant, who did not submit any written defence. According to the record of the proceedings - which apparently in neither case lasted longer than fifteen minutes -, one prison officer gave evidence on the mutiny charge, reading a statement describing the part allegedly played by Mr. Campbell and the other prisoners in the incident, and another gave evidence on the personal violence charge, to the effect that he had been struck by Mr. Campbell. The evidence of the first witness was accepted by the Board and its chairman put certain questions to the second.
On 6 October 1976, the applicant was found guilty on both charges and was awarded, for the mutiny and the violence offences respectively, 450 days’ and 120 days’ loss of remission, together, again respectively, with 56 days’ and 35 days’ loss of certain privileges, exclusion from associated work, stoppage of earnings and cellular confinement, the sanctions for the two offences to run consecutively (see paragraphs 28 and 29 below). On his reception into prison, Mr. Campbell had been given an estimated date for release (see paragraph 29 below) of May 1980; at the time of the Board’s award, he had already forfeited 145 days of remission in ten separate adjudications for offences against discipline and the balance of potential remission available to him totalled 1,072 days.
15. Observations filed with the Commission on behalf of Mr. Campbell on 1 September 1977 and on 17 April 1979 indicated, respectively, that he was contemplating making and had made an application to the English courts, by way of certiorari proceedings (see paragraphs 39-41 below), for review of the October 1976 adjudication by the Board of Visitors in his case.
A memorandum filed on 23 July 1980 revealed, however, that on counsel’s advice, given in November 1979 and June 1980, both Mr. Campbell and Father Fell had decided not to make such an application; counsel considered, as regards the former, that proceedings would be destined to fail on the ground that he had "refused" to participate in the adjudication. At the hearings of 20 September 1983 before the Court, the Government indicated that, even in 1980, the Home Office would probably not have opposed a request by Mr. Campbell for leave to apply for certiorari out of time (see paragraph 41 below), but would do so now. He has, in fact, never pursued the matter.
The question was subsequently reconsidered in the case of Father Fell who had previously been advised, in November 1979, that an application might be feasible. In February 1981, senior counsel advised him to seek certiorari immediately on the ground of "substantial unfairness" in the Board’s hearing of 24 September 1976 in his case, which he had attended. Later in the year, he obtained the necessary leave from the court, but his application failed, both at first instance and on appeal.
16. Whilst in custody Mr. Campbell was the subject of fifteen adjudications for disciplinary offences, as a result of which he lost 957 days of remission (including the 570 forfeited as a result of the Board’s award of 6 October 1976). Following applications by him pursuant to the procedure described in paragraph 38 below, 236 days of remission were restored to him. He was released from prison on 31 March 1982, having served approximately eight years and eight months of his ten years’ sentence, including time spent in custody on remand.
17. Father Fell petitioned the Home Secretary on or about 21 September 1976 in the following terms: "During the course of [an incident at Albany Prison on 16 September], I sustained a number of physical injuries. My request to yourself is that I be permitted to see and to consult with my lawyer, pending further action that I may deem necessary to take." About a week later, in a supplementary petition, the applicant stated that he wanted to see his solicitor regarding compensation for his injuries and any civil proceedings he might be advised to take.
The Home Secretary replied on 1 October. He informed Father Fell that, in accordance with the "prior ventilation rule" (see paragraph 44 (c) below), he would be able to seek legal advice on the substance of his complaints once they had been investigated through the normal internal channels and he had been given the result of the investigation.
18. Father Fell petitioned again on 4 October 1976. He gave details of his allegations concerning the incident of 16 September and its aftermath and asked for a thorough investigation; he added further information concerning his injuries in a supplementary petition of 27 October.
In his reply of 9 February 1977, the Home Secretary indicated that he was satisfied, after investigation, that there was no substance in the applicant’s allegations of assault and of inadequate or unnecessarily delayed medical treatment; he informed the applicant that he would be granted facilities to seek legal advice on the matters referred to in his petition, if he still wished to do so.
19. In a petition of 28 November 1976 to the Home Secretary, Mr. Campbell stated, but without indicating the reasons, "I want to see my lawyer". On 8 December, the request was refused, on the ground that he had not supplied sufficient details for a proper internal inquiry to commence. On 3 March 1977, the same ground was given for refusing a further petition, dated 28 December 1976, in the following terms: "As a result of injuries received at the hands of prison staff at Albany Prison I intend to take legal action and therefore need to see my solicitor. The incident happened in mid-September and I have petitioned about it once before."
20. At this time, there was also a certain amount of correspondence with Messrs. Woodford & Ackroyd, the solicitors then acting for both applicants. After a letter of 17 January 1977 from Mr. Campbell to them had been posted through the normal prison channels, they wrote to the Home Office on 28 January stating that they had been instructed to represent him in civil proceedings and seeking authority to approach the Prison Governor to discuss their client’s allegations. However, a letter of 24 January from them to Mr. Campbell, referring, it seems, to legal aid, was stopped.
Instructions from the prisoners involved in the September 1976 incident also apparently reached the solicitors by other means. On 10 February 1977, they wrote to the Albany Prison Governor stating that both of the applicants and four other prisoners wished to see them "concerning certain matters of a legal nature" and requesting confirmation that this could be done in private. On 14 February - that is five days after the Home Secretary had told Father Fell that he could consult a lawyer (see paragraph 18 above) -, the Governor replied that appointments to see, inter alios, that applicant could be made, but that according to prison rules Mr. Campbell was not yet in a position to seek legal advice, since the Prison Department’s examination of his complaints had not yet been completed.
In a reply of 3 March to the solicitors’ above-mentioned letter of 28 January, the Home Office stated that Mr. Campbell’s letter of 17 January to them had been posted in error and that he could not correspond with or receive visits from them until the "prior ventilation rule" (see paragraph 44 (c) below) had been complied with as regards any complaint he might wish to make.
On 23 March, Messrs. Woodford & Ackroyd were given permission to consult with Mr. Campbell in connection with his application to the Commission (see paragraph 44 (e) below). His account of the September 1976 incident, contained in a memorandum of 1 September 1977 to the Commission, was subsequently accepted by the authorities as a sufficient basis for an internal inquiry into his complaints to be commenced. The inquiry - in which the applicant had not co-operated - was completed on 29 November and, on or about 16 December 1977, he was told that he could take legal advice concerning the complaints that had been investigated.
21. Both applicants subsequently obtained various legal advice and, by writs issued on 13 September 1979, instituted proceedings, alleging assault, against individual prison officers, the Deputy Governor and the Home Office. These actions, in which statements of claim were served some fifteen months later, were still pending at the time of the hearings before the Court (September 1983).
22. In a reply of 23 March 1977 to a letter of 21 March from Messrs. Woodford & Ackroyd - who had already raised the matter in their letter of 10 February (see paragraph 20 above) -, the Albany Prison Governor stated that at that stage a visit by them to Father Fell would be subject to Rule 37 (2) (see paragraph 44 (d) below) and would therefore have to take place within sight and hearing of an officer. They replied that they were unable to accept these conditions and intended to refer the matter to "the European Court of Human Rights".
On 11 May, the solicitors informed the Governor of the introduction, on 31 March, of Father Fell’s application to the Commission; on the following day, the Governor informed them that they could interview their client in connection with that application in sight but out of hearing of an officer (see paragraph 44 (e) below).
23. On or about 23 September 1976, Father Fell asked, in a petition to the Home Secretary, for the opportunity for an independent medical consultation. On 5 October, the Home Office stated that the Secretary of State was not prepared to grant this request.
24. After Mr. Campbell’s return from Parkhurst to Albany Prison, a request was made by him or his family, apparently on about 18 October 1976, for him to be examined by an independent doctor. According to the Government, he was advised to pursue the matter by way of petition to the Home Secretary, but did not do so. According to the applicant, the request was categorically refused.
25. In October 1974, when in Hull Prison, Father Fell was informed, in reply to his petition of the previous July, that the Home Secretary was not prepared to allow him to correspond with a Sister Monica Power, on the ground that although she had been known to him before he came into custody, their relationship was not considered to amount to a "close personal friendship". In a letter of 17 December to a Member of Parliament, the Home Secretary maintained this decision, which he explained by reference to the practice concerning the permitted correspondents of "category A" prisoners (see paragraph 44 (a) below): there was no evidence of a friendship as aforesaid between the applicant and Sister Power, although he had known her for longer than some of his approved correspondents.
Father Fell also alleged that he had not been allowed to correspond with other friends, including another nun, Sister Mary Benedict. According to the Government, he corresponded with 200 persons prior to his conviction, whilst detained on remand, and was allowed to correspond with 40 persons thereafter.
26. The control over and responsibility for prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47 (1) of that Act to make rules "for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein". Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves.
The rules made by the Home Secretary and currently in force are the Prison Rules 1964, as amended.
27. Rule 47 creates a total of twenty-one disciplinary offences of varying degrees of seriousness. So far as relevant to the present case, it provides that "A prisoner shall be guilty of an offence against discipline if he
(1) mutinies or incites another prisoner to mutiny;
(2) does gross personal violence to an officer".
These acts are classified as "especially grave offences".
28. The Rules list the "awards" which may be made for an offence against discipline; they range from a caution upwards and include:
(a) forfeiture of certain privileges;
(b) exclusion from associated work;
(c) stoppage of earnings;
(d) cellular confinement;
(e) forfeiture of remission of sentence.
In the case of an "especially grave offence", the sanctions mentioned at (b), (c) and (d) above may not be imposed for a period exceeding 56 days but there is no limit as regards those mentioned at (a) and (e) (Rules 51 and 52).
Where more than one offence has been committed, the respective awards may be ordered to run consecutively, although there is no provision in the Rules on this point.
29. Section 25 (1) of the Prison Act 1952 provides:
"Rules made under section 47 of this Act may make provision whereby, in such circumstances as may be prescribed by the rules, a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct, and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire."
Under Rule 5 (made pursuant to this section), a prisoner serving a sentence of imprisonment other than for life "may ... be granted remission" not exceeding one-third of his sentence. This therefore represents the maximum period that may be forfeited under a disciplinary award.
Under both the Prison Act and the Rules, remission - which is seen by the authorities as part of the process for encouraging the reform of prisoners - is a discretionary measure. In practice, at the outset of his sentence every prisoner is given an estimated date for release, calculated by reference to the maximum possible remission, and he will be released on that date unless remission has been forfeited in disciplinary proceedings. Forfeiture of remission - which is not awarded solely for the most serious offences - does not have the effect of increasing the original sentence and it is the latter which continues to provide the legal basis for the detention.
3O. Conduct constituting a disciplinary offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to an officer corresponds to the crime of assault occasioning actual bodily harm. Mutiny and incitement to mutiny, on the other hand, are not as such offences under the general criminal law, although the underlying facts might found a charge of, for instance, conspiracy.
According to the Government, where the conduct amounts to both a disciplinary and a criminal offence, the Prison Department of the Home Office decides on an ad hoc basis whether the matter should be referred to the police with a view to prosecution in the courts. Conduct so referred, they said, generally involved substantial violence; other relevant factors might be the prevalence of the conduct in question within the prison, the feelings of staff and inmates, the prisoner’s record and behaviour, the amount of any remission he might previously have lost and of his sentence remaining to be served, and the cost, inconvenience and security risks involved in a criminal trial.
According to the applicants, however, an individual prison officer may himself report the matter to the police, and the Government recognised that, in any case where the police themselves decided not to prosecute, a private prosecution remained a possibility. Moreover, the same facts may, theoretically at least, give rise to both criminal and disciplinary proceedings (see R. v. Hogan [1960] 3 All England Law Reports 149).
31. Where a prisoner is to be charged with an offence against discipline, the charge must be laid as soon as possible and must, in the first instance, be inquired into by the prison governor, generally not later than the day following the laying of the charge (Rule 48). The prisoner must be informed of the charge as soon as possible and, in any event, before the governor’s inquiry (Rule 49).
Certain less serious matters are dealt with by the governor alone. In the case, however, of a charge of an "especially grave offence", he has to inform the Home Secretary forthwith and, unless otherwise directed by him, refer the charge to the prison’s Board of Visitors (Rule 52).
32. A Board of Visitors is a body that has to be appointed, by the Home Secretary, for each prison in England and Wales; its members, at least two of whom must be justices of the peace - who are not necessarily lawyers -, hold office for three years or such less period as the Home Secretary may appoint (section 6 of the Prison Act 1952, as amended by the Courts Act 1971, and Rule 92). They may be re-appointed.
There are l15 Boards in all and each has between 8 and 24 members, who are unpaid but are reimbursed their expenses. Anyone may seek appointment but in practice most candidates are persons suggested by existing members. The main principles adopted in making appointments are to achieve a roughly equal number of magistrates and non-magistrates; to provide members having the requisite personal qualities, interest and time; and to ensure that membership contains a good cross-section of the population. A Board is normally appointed for a three-year term; there is no express statutory provision enabling the Home Secretary to dismiss a member and resignation before expiry of a term of office would, according to the Government, be required only in the most exceptional circumstances.
33. A Board’s duties include, in addition to inquiring into charges of disciplinary offences, satisfying itself as to the state of the premises, the administration of the prison and the treatment of inmates, hearing a prisoner’s complaints or requests, directing the governor’s attention to matters calling for his attention and making reports to the Home Secretary (Rules 94, 95 and 97). In case of urgent necessity, it has power to suspend any prison officer until the decision of the Home Secretary is known (Rule 94 (4)). Its members are required to visit the prison frequently, have a right of access to every part of the prison and to prison records and may interview any prisoner out of the sight and hearing of officers (Rule 96). A Board’s adjudicatory functions generally account for a small proportion of its overall duties and, of the small percentage of prison disciplinary proceedings which are conducted before Boards, few concern "especially grave offences".
The various functions of Boards of Visitors were examined by an independent committee set up by "Justice", the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders. In its report of 1975 ("the Jellicoe report"), this committee noted that "Boards take their duties of adjudication very seriously", but that "in spite of the efforts made to do justice it is doubtful whether it is seen to be done". It concluded that to be involved in the adjudication of serious offences was incompatible with the supervisory body’s need to establish conspicuous independence and therefore recommended that "the body responsible for supervision should not have a disciplinary function". Nevertheless, "after careful consideration", the Home Secretary decided in 1976 that "the independence of Boards of Visitors was compatible with their other functions".
The status of Boards was also considered in the St. Germain case (see paragraph 39 below). In the Court of Appeal, Lord Justice Waller stated that "Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and, when sitting [in an adjudicatory capacity], can be regarded as ‘an impartial and independent authority’"; for Lord Justice Megaw, a Board’s adjudicatory function "was properly regarded as a separate and independent function, different in character from [its] other functions".
34. When a charge of an "especially grave offence" is referred to a Board, its chairman must summon a special meeting at which not more than five nor fewer than three members - at least two being justices of the peace - must be present (Rule 52). If, after inquiring into the charge, the Board finds the offence proved, it has to make one of the awards mentioned in paragraph 28 above, although the implementation thereof may be suspended.
35. Neither the Prison Act 1952 nor the Rules lay down a detailed code of procedure for disciplinary proceedings before Boards of Visitors. However, Rule 49 (2) - a similar provision appears in section 47 (2) of the Act - reads as follows: "At any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case."
The procedure used to be arranged as a matter of practice. Since 1977 Boards have been issued by the Prison Department of the Home Office with a booklet entitled "Procedure for the Conduct of an Adjudication by a Board of Visitors".
36. Proceedings before the Board are initiated by means of a report by a prison officer to the governor containing details of the alleged offence. The prisoner will receive a "notice of report", stating the alleged offence and the time, date and place thereof, and may reply to the charge in writing. He will also be given a form, which has no statutory force, outlining the procedure which will be followed when he appears before the Board: he will be asked to plead to the charge and may question witnesses in support of the charge, request that witnesses on his behalf be heard and himself give evidence or make his defence. The hearing takes place in private within the prison and the Board’s decision is pronounced under the same conditions.
The Rules themselves contain no specific provision as regards legal advice about, or legal representation at, an adjudication before a Board. Under the practice followed prior to 1981, a prisoner would not have been granted leave to seek legal advice before the hearing. Furthermore, the Court of Appeal held in Fraser v. Mudge ([1975] 3 All England Law Reports 78) that although a Board had to observe the requirements of natural justice and act fairly in disciplinary proceedings, a prisoner was not entitled to legal representation thereat. However, in its judgment of 8 November 1983 in R. v. Albany Prison Board of Visitors, ex parte Tarrant ([1984] 1 All England Law Reports 799), the Divisional Court held that although there is no absolute entitlement to such representation, a Board does have a discretion to allow it. Furthermore, the prisoner has a right to require that that discretion be exercised and that his request for representation be properly considered on its merits; if the Board fails to exercise its discretion properly, its decision must be quashed. Mr. Justice Webster added that in most, if not all, cases involving a charge of mutiny no Board of Visitors, properly directing itself, could reasonably decide not to allow legal representation.
37. In 1978, in the St. Germain case (see paragraph 39 below), the Court of Appeal had to consider, for reasons of jurisdiction, whether disciplinary proceedings before a Board of Visitors were a "criminal cause or matter", within the meaning of the relevant legislation. It answered this question in the negative.
Lord Justice Waller based his decision on the fact that the charges heard by the Board were not "criminal", that is charges "of an offence against public law", and that the Board was not a court of criminal jurisdiction.
Lord Justice Shaw considered that the Board’s proceedings possessed some of the attributes of a criminal cause or matter (for example, accusation, inquiry, adjudication and possible punitive consequences) but lacked the essential characteristic, namely a penal proceeding for the infraction of a requirement relating to the enforcement and preservation of public law and order. In determining the nature of proceedings, account also had to be taken of their context and overall objective. Although an offence under the Rules might coincide with a crime under the general law and lead to a measure corresponding to a penalty or punishment, this did not transform the Board’s adjudication into a criminal cause or matter. It was essentially a domestic disciplinary proceeding, which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of a prison. It would also be illogical and anomalous to regard as a criminal cause or matter proceedings arising from an offence under the Rules which did not amount to a criminal offence under the general law.
However, in R v. Highpoint Prison Board of Visitors, ex parte McConkey, Mr. Justice McCullough, in his judgment of 2O September 1982 (Times Law Reports, 23 September 1982), referred to the "close similarity" between an accusation of breach of the Rules and an accusation of a criminal offence: each was followed by an adjudication and might lead to consequences of a punitive character, for example, in the former case, forfeiture of remission. Although prison disciplinary offences were offences against a private code, they were also "penal"; in principle, the relevant Rules should be construed no more harshly against a prisoner than would be appropriate were the offences criminal. Again, in the Tarrant case (see paragraph 36 in fine above) it was conceded on behalf of the Board of Visitors that the standard of proof to be applied in disciplinary adjudications was a criminal one.
38. Under Rule 56, disciplinary awards made by a Board of Visitors may be remitted or mitigated by the Home Secretary or, subject to his directions, by the Board itself. Procedures and criteria for the restoration of forfeited remission of sentence are laid down in Circular Instruction 58/1976 issued by the Minister: basically, the prisoner must show a significant improvement indicative of a genuine change of attitude, and the power to restore is not to be used merely to modify an award which is subsequently thought excessive or open to doubt.
Applications for remission or mitigation of awards are normally made in the first instance to the Board itself. Its decision may be the subject of a petition by the prisoner to the Home Secretary. Under Rule 7, every prisoner has to be provided on or shortly after his reception into prison with information in writing about, inter alia, the proper method of making petitions.
In the St. Germain case (see paragraph 39 below), the members of the Court of Appeal expressed the view that a petition under Rule 56 was not to be regarded as a formal appeal; it was noted, amongst other things, that the Home Secretary was not empowered to quash the Board’s finding of guilt.
39. (a) The question whether the English courts have jurisdiction to review disciplinary proceedings before Boards of Visitors was considered in R. v. Hull Prison Board of Visitors, ex parte St. Germain and others. In that case, application was made for orders of certiorari to quash, on the ground of failure to observe the rules of natural justice, certain decisions imposing disciplinary awards, taken by a Board in 1976.
(b) In a judgment of 6 December 1977 ([1978] 2 All England Law Reports 198), the Divisional Court held that although a Board was in the nature of a judicial body under a duty to act judicially, it was not subject to control by way of certiorari, a remedy which did not extend to private disciplinary proceedings in a closed body enjoying its own form of discipline and rules. It was stressed that a Board had an "intimate relationship" with the prison and, when adjudicating, was part of the latter’s disciplinary machinery.
(c) Notice of appeal against this decision was served on 20 December 1977. The Court of Appeal allowed the appeal in its judgment of 3 October 1978 ([1979] 1 All England Law Reports 701). It held that there was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character. There was no binding authority as to whether certiorari would lie against disciplinary decisions of a Board of Visitors and the question had to be decided in the light of public policy. A Board’s disciplinary functions were separate and independent from its other functions. When hearing disciplinary charges it was not imposing summary discipline as part of the day to day administration of the prison but was instead an independent body which could only punish a prisoner after a formalised inquiry and/or hearing. In doing so it was exercising a judicial function and its decisions were therefore subject to control by the courts by certiorari in appropriate cases. However, the remedy was discretionary and relief would be granted only where there had been a failure to act fairly, having regard to all the circumstances and such unfairness had given rise to a substantial, as distinct from a trivial or merely technical, injustice.
4O. The case was then remitted to the Divisional Court which, by judgment of 15 June 1979 ([1979] 3 All England Law Reports 545), quashed certain of the decisions taken by the Hull Prison Board of Visitors. The Divisional Court observed that section 47 (2) of the Prison Act 1952 and Rule 49 (2) (see paragraph 35 above) were declaratory of the basic rule of natural justice that every party to a controversy had a right to a fair hearing; although, on the facts, this rule had not been observed as regards the quashed decisions, there was nothing in the Board’s procedure in general to which any objection could properly be taken.
The Divisional Court pointed out that the right to a fair hearing before a Board of Visitors included the right to call evidence; the chairman’s power to refuse to allow a prisoner to call witnesses had to be exercised reasonably, in good faith and on proper grounds (which would not include mere administrative convenience). Further, the prisoner must also have a sufficient opportunity to deal with the evidence given against him, which might necessitate giving him the opportunity to cross-examine witnesses whose evidence was initially before the Board in hearsay form.
41. Applications for certiorari must in principle be made within a prescribed time-limit running from the date of the decision challenged: in 1976, the time-limit was six months; since 11 January 1978, it has been three months. Leave may be granted to apply out of time; this is a matter for the court’s discretion but experience shows that if a late application is not opposed by the Home Office, leave will not be refused.
Where decisions taken by a Board of Visitors in disciplinary proceedings are quashed by a court, the charges in question may subsequently be the subject of a fresh adjudication by a differently constituted Board.
42. The question of prisoners’ correspondence and visits is dealt with in a number of the Rules.
With a view to securing uniformity of practice throughout prison establishments, the Home Secretary also issues to prison governors management guides or directives in the form of Standing Orders ("Orders") and Circular Instructions ("Instructions"). Unless otherwise authorised, governors are required to comply with these directives, but they do not have, or purport to have, the force of law. As far as correspondence and visits are concerned, the directives are intended to serve a dual function: on the one hand, to circumscribe the discretion conferred on governors by the Rules, and, on the other, to state the manner in which the Home Secretary has decided in certain respects to exercise his own discretionary powers thereunder.
Prior to 1 December 1981, the directives in question were made available to Members of both Houses of Parliament for reference but not to the public or prisoners, although the latter received, by means of cell cards, information about certain aspects of the control of correspondence and visits.
43. The basic Rules on correspondence and visits, which were in force at the time of the events giving rise to the present case, included the following:
"33(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.
(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.
(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.
(4) Every visit to a prisoner shall take place within the sight of an officer, unless the Secretary of State otherwise directs.
(5) Except as provided by these Rules, every visit to a prisoner shall take place within the hearing of an officer, unless the Secretary of State otherwise directs.
(6) The Secretary of State may give directions, generally or in relation to any visit or class of visits, concerning the days and times when prisoners may be visited."
"34 (8) A prisoner shall not be entitled under [Rule 34]" - which regulates the quantity of correspondence and visits - "to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State."
44. The foregoing Rules were supplemented or modified, either by Orders or Instructions or by further Rules, in a number of respects, including the following.
(a) Under Rule 34 (8), as supplemented by Order 5A 23, prisoners had to seek the Home Secretary’s leave to correspond with or be visited by any person other than a close relation; they were, however, also normally allowed, without the necessity to seek such leave, to correspond with or be visited by other relatives or existing friends, but the governor could forbid such correspondence or visits on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. Governors had a discretion to allow communications with certain other persons not personally known to the prisoner before he came into custody. However, it would have been unlikely that such discretion would have been exercised in favour of "category A" prisoners, such as Mr. Campbell and Father Fell; this is the security category reserved for persons who, if they escaped, would be highly dangerous to the public or the police or to the security of the State.
(b) With effect from 1 January 1973, the extent of the control of correspondence relating to civil or criminal proceedings to which the prisoner is already a party was limited by Rule 37A (1), which reads:
"A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33 (3) of these Rules."
(c) Until 6 August 1975, inmates had to petition the Home Secretary for permission to seek advice about, or give instructions for, the institution of civil proceedings (with the exception of certain divorce cases). On that date, Instruction 45/1975 introduced changes that were subsequently reflected in Rule 37A (4), which came into operation on 26 April 1976 and reads:
"Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings."
Instruction 45/1975 - and subsequently Order 17A - further provided, inter alia, that:
(i) the inmate had to have sought a solicitor’s advice before he would be permitted to institute proceedings;
(ii) at each stage a written application, with reasons, had first to be made to the prison governor for the necessary facilities, which could take the form of a letter or a visit; they had to be granted immediately, except that, in the case of prospective civil proceedings against the Home Office (or any servant thereof) "arising out of or in connexion with" the imprisonment, the "prior ventilation rule" generally applied.
The effect of the last-mentioned rule was that the prisoner would not be granted facilities to obtain legal advice, by correspondence or at a visit, about such proceedings unless and until he had raised his complaint through the normal internal channels (petition to the Home Secretary, or application to the Board of Visitors, a visiting officer of the Home Secretary or the prison governor) and been given a definitive reply, whether favourable or not.
(d) Visits by legal advisers were subject to the following special Rule:
"37 (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.
(2) A prisoner’s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer."
Disciplinary proceedings before a Board of Visitors were not considered by the authorities to be "legal proceedings" for the purposes of the Rules, notably Rule 37 (1) and Rule 37(A) 1.
(e) There were special, less strict, provisions concerning applications to the Commission (Order 5B 22).
45. Prior to 1 December 1981, both Orders and Instructions contained, in addition to directives on the control of prisoners’ correspondence and visits, internal rules and guidance of a general nature concerning the day to day administration of the prison. With effect from that date, the directives on correspondence and visits were substantially revised. In addition, revised Orders on those subjects have been published in their entirety, matters of a management or administrative nature which do not concern a prisoner’s entitlement to correspond or receive visits and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions. The Rules themselves have not been amended, although the Government have indicated that as soon as practicable Rule 34 (8) (see paragraph 43 above) would be repealed in so far as it affected correspondence.
46. So far as is material to the present case, the earlier position is now modified in the following respects.
(a) The new Orders (nos. 5B23-5B30) state that, with certain exceptions, a prisoner may correspond with any person or organisation, provided always that the regulations on the contents of correspondence and the "simultaneous ventilation rule" are observed.
(b) The "simultaneous ventilation rule", set out in Order 5B34 j, has taken the place of the "prior ventilation rule" (see paragraph 44 (c) in fine above). Legal advice concerning civil proceedings in respect of prison treatment may now be obtained as soon as the prisoner has raised his complaint through the prescribed procedures; he no longer has to await the outcome of the internal inquiry.
(c) Rule 37 (1) (see paragraph 44 (d) above) continues to apply to visits by a legal adviser concerning legal proceedings to which the prisoner is already a party. Under new Order 5A34, other visits by a legal adviser acting in a professional capacity are also now allowed out of the hearing of a prison officer, provided the subject to be discussed is disclosed to the governor in advance and does not offend against the restrictions on correspondence with legal advisers set out in new Order 5B34 (including the "simultaneous ventilation rule"). If the subject to be discussed is not disclosed, the visit will still be allowed but will be in the hearing of an officer.
47. Under Rule 17, responsibility for the health of prisoners is placed on the prison medical officer; he has discretion to call in another medical practitioner.
The prison authorities will not generally allow a convicted prisoner to be examined by an outside doctor (other than one called in as aforesaid) unless the prisoner is a party to legal proceedings, in which event Rule 37A (3) applies. This Rule provides:
"Subject to any directions given in the particular case by the Secretary of State, a registered medical practitioner selected by or on behalf of [a prisoner who is party to any legal proceedings] shall be afforded reasonable facilities for examining him in connection with the proceedings, and may do so out of hearing but in the sight of an officer."
48. An inmate who is aggrieved by a decision concerning his correspondence or visits may complain to the prison governor, the Board of Visitors or a visiting officer of the Home Secretary or he may petition the Home Secretary himself. A prisoner may ventilate his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes.
49. As far as the Board of Visitors is concerned, it may examine the compatibility of the decision complained of with the Rules and the Home Secretary’s directives. It will draw the governor’s attention to any irregularity, or report to the Home Secretary; although its powers are advisory in character, its advice will be implemented save in exceptional circumstances.
50. Inmates have the right to submit petitions to the Home Secretary about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment.
On a petition being made by a prisoner, complaining of a decision of the prison authorities concerning his correspondence or visits, the Home Secretary would, if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice.
Prior to 1 December 1981, directives concerning the submission of petitions were contained in Orders 5B l-16. It was, in particular, provided that, with certain exceptions, a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition (Order 5B 12 (2)).
With effect from 1 December 1981, the provisions of Order 5B 12 (2) have been relaxed by new Orders 5C9 and 5ClO. A further petition may now be submitted if a month has elapsed since the submission of the previous petition. Moreover, even though an earlier petition be outstanding, a prisoner may petition forthwith on certain specified matters, including interferences with his correspondence but not restrictions on his visits.
51. Complaints concerning the control of correspondence or visits may also, on certain conditions, be raised with the Parliamentary Commissioner for Administration (the Ombudsman). However, his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Rules or the Home Secretary’s directives; moreover, the Ombudsman cannot grant direct relief since he is limited to reporting the results of his investigation to a Member of Parliament, the authority concerned and, in certain circumstances, each House of Parliament (sections 10 and 12 of the Parliamentary Commissioner Act 1967).
52. The exercise by the prison authorities of their powers under the Rules to control correspondence and visits is subject to the supervisory control of the English courts by way of proceedings for judicial review. In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to correspond or receive visits (for example, Rules 37(A) 1 and 37 (1); see paragraph 44, sub-paragraphs (b) and (d), above), and to ensure that the discretion conferred on the authorities by the Rules is not exercised arbitrarily or unreasonably, in bad faith, for an improper motive or in an ultra vires manner.
The Court notes in this context that in Raymond v. Honey [1982] 1 All England Law Reports 759, Lord Wilberforce pointed out that it was a principle of English law that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication."
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c


ITEMID: 001-60725
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF WYNEN AND CENTRE HOSPITALIER INTERRÉGIONAL EDITH-CAVELL v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 as regards the inadmissibility of statement of grounds of appeal;No violation of Art. 6-1 as regards notification to the applicants of the hearing in the Court of Cassation;No violation of Art. 6-1 as regards the possibility of replying to the advocate-general's submissions;No violation of Art. 6-1 as regards refusal of the request for a reference for a preliminary ruling;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 9. The first applicant was born in 1923 and lives in Braine-l’Alleud. The second applicant has its registered office in Brussels.
10. In October 1990 a magnetic-resonance imaging (MRI or NMR) unit with a built-in electronic calculator – a high-technology medical device – was installed at the IMEC. In accordance with a royal decree of 27 October 1989, a department in which an MRI unit was installed was regarded as a “high-cost medico-technical service” within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987. Pursuant to that statutory provision, such services had to be approved. The criteria for approval were laid down in the royal decree. The relevant department at the IMEC had not, however, obtained the necessary approval.
11. On 15 March 1991 the Ministers of Public Health for the Brussels-Capital bilingual region lodged a complaint with the public prosecutor against the first applicant for installing high-cost medical equipment without the prior approval of the minister responsible for public health. In January 1993 the first applicant and the IMEC, his employer, which was civilly liable for his acts, were summoned to appear in the Brussels Criminal Court. The Belgian State subsequently applied to join the proceedings as a civil party.
12. On 22 March 1994 the Brussels Criminal Court acquitted the first applicant and cleared the IMEC.
13. On 31 March 1994 that judgment prompted the following speech by a member of Parliament during the passage of a bill amending the Hospitals Act:
“I was shocked by the court ruling last week in the Wynen case. Everyone knows Dr Wynen’s habit of not caring about legislation. He illegally installs high-cost scanners at his hospital, the Edith-Cavell, and justifies his actions with arguments about medical ethics.” (summary record, House of Representatives, 1993/94 ordinary session, sitting of 31 March 1994)
14. State Counsel’s Office and the civil party appealed against the judgment of 22 March 1994.
In their appeal submissions the applicants argued, among other things, that the royal decree of 27 October 1989, which had formed the basis for the prosecution, was unlawful, particularly as it concerned a matter dealt with by legislation at community rather than federal level. They pointed out in that connection:
“Section 44 of the Hospitals Act empowers the King to lay down approval and planning criteria for the installation of magnetic-resonance imaging (MRI) units with built-in electronic calculators, with a view to controlling public expenditure.
The decree lays down a number of conditions relating to:
(1) the department in which the equipment is installed; (2) the number of employees and their qualifications; (3) the safety of the equipment and of the surrounding area; (4) quality control of the work carried out by users; (5) the geographical location of the equipment (the requirements vary according to the power of the equipment); and (6) the number of beds.
At best, only the fifth criterion can possibly come under the responsibility of the Federal Ministry of Social Affairs. The other conditions pursue a quite different aim, namely that of regulating the provision of health care, responsibility for which currently falls to the Communities by virtue of section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform.
Seeing that four of the five conditions it lays down do not come under the responsibility of the national authorities, the royal decree of 27 October 1989 should be declared unlawful in its entirety since it cannot be applied only in part.”
The applicants also submitted that the complaint, civil-party application and appeal by the Belgian State were unlawful, inadmissible and void; that the complaint by the Belgian State infringed the principle of equality enshrined in Articles 10 and 11 of the Constitution in that the public authorities, without applying any objective or reasonable criteria proportionate to the aim pursued, had refrained from reporting other similar offences to the public prosecutor; that the royal decree of 27 October 1989 and, at the very least, the penalty for which it provided, had been tacitly repealed; and, lastly, that the decree infringed several fundamental rights, including the right to life and health, freedom of choice with regard to medical treatment and the prohibition of inhuman and degrading treatment.
15. On 12 January 1995 the Brussels Court of Appeal reversed the judgment, imposed a suspended fine of 2,340 Belgian francs on the first applicant and ordered him to pay costs, applying, inter alia, sections 37 to 42 and 44 of the Hospitals Act. The IMEC was held to be jointly and severally liable for payment of the fine and the costs. In particular, the Court of Appeal dismissed the applicants’ arguments that the royal decree of 27 October 1989 had been tacitly repealed or was unlawful.
16. The applicants appealed to the Court of Cassation against that judgment. In their pleadings they relied on, inter alia, Articles 6 and 7 of the Convention, their main arguments being that the Court of Appeal had based its judgment on contradictory and inconsistent reasoning and had, in particular, applied section 116(8) of the Hospitals Act (which concerned high-cost medical “equipment”), whereas, pursuant to the royal decree of 27 October 1989, an MRI unit constituted a high-cost medico-technical “service”, the setting up or operation of which came under section 16(10) of that Act; that the Court of Appeal had omitted to examine whether the royal decree of 27 October 1989 was compatible with the Special Law of 8 August 1980 on institutional reform, which had apportioned powers among the State, the Communities and the Regions, or with the principle of equality enshrined in Articles 10 and 11 of the Constitution, and that it had failed to refer the matter to the Administrative Jurisdiction and Procedure Court; that it had infringed the general principle of the burden of proof and the presumption of innocence; that the lawfulness of the royal decree of 27 October 1989, which the Court of Appeal had applied, had not been established; and that, in any event, the penalty for which it provided had been tacitly abolished by a subsequent provision, namely section 120(1) of the Law of 22 December 1989.
Under the second limb of their second ground of appeal, the applicants asserted that the Court of Appeal had breached section 26(1) of the Special Law on the Administrative Jurisdiction and Procedure Court (see paragraph 28 below) by refusing to refer a preliminary question to that court as to whether section 44 of the Hospitals Act contravened the rules laid down by or pursuant to the Constitution to determine the respective powers of the (federal) State, the Communities and the Regions. They submitted in that connection:
“The appellant argued in his appeal submissions that the royal decree of 27 October 1989 did not comply with the Special Law of 8 August 1980 on institutional reform in that it laid down approval criteria relating to health-care policy, a matter which is the responsibility of the Communities.
The judgment appealed against should not merely have assessed whether the royal decree of 27 October 1989 was compatible with the consolidated Hospitals Act which it implemented, since the King is not entitled to stay or dispense with the enforcement of the laws on institutional reform; moreover, the consolidated Hospitals Act does not confer, and could not possibly have conferred, on him the authority to derogate from the laws on the distribution of powers. ...
Furthermore, seeing that [the Court of Appeal] held that the royal decree complied with the consolidated Hospitals Act, it was required by section 26(1) of the Special Law of 6 January 1989 to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether the Act contravened the rules on the distribution of powers between the State, the Communities and the Regions.”
The applicants accordingly asked the Court of Cassation to submit the following question to the Administrative Jurisdiction and Procedure Court:
“In so far as section 44 of the consolidated Hospitals Act of 7 August 1987 is to be construed as empowering the King to lay down the rules set out in the royal decree of 27 October 1989 ‘establishing standards which a service that has installed a magnetic-resonance imaging unit with a built-in electronic calculator must satisfy in order to be approved as a high-cost medical service within the meaning of section 44 of the Hospitals Act, consolidated on 7 August 1987’, does that provision contravene:
(1) the rules on the distribution of powers, seeing that by virtue of, inter alia, section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities; ...”
Under the third limb of the second ground of appeal, based on Article 149 of the Constitution, which lays down the obligation to give reasons for judgments and decisions, the applicants asked the Court of Cassation to submit a further preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act breached Articles 10 and 11 of the Constitution, which safeguarded the principle of equality and non-discrimination.
17. The civil party, which was the respondent before the Court of Cassation, filed pleadings in reply on 8 September 1995.
18. On 19 October 1995 the applicants filed supplementary pleadings in which, among other things, they set out four fresh grounds of appeal – based, in their submission, on public policy – alleging violations of various provisions of the Constitution and the Convention, in particular Articles 2 and 3. In their new grounds they submitted that the royal decree of 27 October 1989 was unlawful; that the principle of equality had been infringed in that, among the many hospitals that possessed the equipment in issue, only the applicants had been prosecuted; that the penalty set forth in the Hospitals Act had been abolished; and, lastly, that a number of fundamental rights, including the right to life, had been infringed. The applicants also reiterated their request to have the preliminary question cited above submitted to the Administrative Jurisdiction and Procedure Court.
19. On 8 January 1996 the date set for the hearing was entered on the list displayed at the registry and in the courtroom of the Court of Cassation.
20. The Court of Cassation held a public hearing on 24 January 1996. The applicants assert that they were not notified of the date of the hearing, such an omission being in accordance with Article 420 ter, second paragraph, of the Code of Criminal Procedure (CCP), which provided that dates set for hearings in the Court of Cassation were entered on the list of pending cases at least fifteen days in advance, without any further notification. As is apparent from the record of the hearing, the court heard evidence from the reporting judge, the representative of Principal State Counsel’s Office and counsel for the civil party. State Counsel did not attend the deliberations that took place after the hearing. On the same day, after the deliberations, the Court of Cassation dismissed the applicants’ appeal, having declared their supplementary pleadings inadmissible as being out of time, pursuant to Article 420 bis, second paragraph, of the CCP, which provided that persons appealing to the Court of Cassation could not file any pleadings once two months had elapsed from the date on which the case was entered on the general list.
21. In its judgment, delivered on the same day, the Court of Cassation held, in particular, that the reasoning given in the judgment appealed against had not been contradictory and that the contention that the Court of Appeal had applied section 116(8) instead of section 116(10) of the Hospitals Act amounted to complaining of an incorrect reference to the applicable legal provision, an error that had no bearing on the penalty imposed since the two provisions in question provided for the same penalty. It further held that the complaint that the royal decree was incompatible with the Special Law of 8 August 1980 amounted to challenging the Law’s constitutionality, a question outside the Court of Appeal’s jurisdiction. Furthermore, the Court of Appeal was under no obligation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court if it considered that the reply to the question was not essential for it to be able to give judgment.
The Court of Cassation further noted that the Court of Appeal had not infringed the rules on the burden of proof as, in dismissing the complaints that the royal decree of 27 October 1989 was unlawful, it had based its decision not on the appellants’ arguments but on the consideration that it was not for the courts to take the place of the executive in assessing the appropriateness of a measure falling within the executive’s sphere of competence.
The Court of Cassation also dismissed the argument that the royal decree in question was unlawful or had been repealed, holding that section 120 of the Law of 22 December 1989 was in no way incompatible with the Hospitals Act of 7 August 1987 as it merely provided for an additional sanction in the form of a limit on fees and, consequently, had not tacitly abolished the criminal penalties provided for in that Act.
Lastly, the Court of Cassation refused the request to submit a preliminary question to the Administrative Jurisdiction and Procedure Court. In so far as the question concerned the compatibility of section 44 of the Hospitals Act with the rules on the distribution of powers, the Court of Cassation held:
“Furthermore, in so far as the appellant asked the Court to submit a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether section 44 of the Hospitals Act, consolidated on 7 August 1987, contravenes the ‘rules on the distribution of powers, seeing that by virtue of section 5(1)(I)(1), policy on the provision of health care within and outside health institutions is the responsibility of the Communities’, he did not state the precise nature of the alleged contravention.
Under the aforementioned section 5(1)(I)(1) of the Special Law of 8 August 1980 on institutional reform, policy on the provision of health care is a ‘person-related matter’ falling within the responsibility of the Communities [matière personnalisable], but only subject to certain exceptions, such as legislation laying down organisational principles, or funding arrangements, where these are governed by such legislation.
Since the consolidated Act of 7 August 1987 lays down organisational principles governing hospitals and, in particular, their funding, the appellant should have explained in the preliminary question he intended to have submitted to the Administrative Jurisdiction and Procedure Court precisely why he considered that section 44 of the Act was not covered by the exceptions whereby legislation laying down organisational principles, and the funding arrangements made in such legislation, are not ‘person-related matters’ for which responsibility is assigned to the Communities by Article 128 § 1 (former Article 59 bis § 2 bis) of the Constitution, but are matters which under the Constitution remain the preserve of federal legislation.
Accordingly, the request for the submission of a preliminary question in relation to this limb of the ground of appeal is inadmissible as being insufficiently precise. ...”
The Court of Cassation also declared the preliminary question inadmissible in so far as it concerned the compatibility of section 44 of the Act with Articles 10 and 11 of the Constitution, on the ground that the question was “extraneous both to Article 149 of the Constitution, the only provision alleged to have been infringed in this limb of the ground of appeal, and to the failure to reply to the appellant’s submissions, the only complaint raised in the limb in question”.
22. At the material time Article 420 bis of the CCP provided:
“Appellants wishing to make oral submissions in the Court of Cassation shall set out their grounds of appeal in pleadings which must be communicated in advance to Principal State Counsel’s Office at least eight days before the hearing.
However, they may not produce any pleadings or documents – other than those concerning the discontinuance or resumption of the proceedings or indicating that the appeal has become devoid of purpose – once two months have elapsed from the date on which the case was entered on the general list. ...”
23. At the material time Article 420 ter of the CCP provided:
“Proceedings shall be governed by the provisions of Articles 1105 to 1109 of the Judicial Code.
Nevertheless, by way of derogation to the second paragraph of Article 1106 of the Code, the date set for a hearing shall, without any further notification, be entered on the list of cases pending before the court at least fifteen days prior to the hearing.
The list shall be displayed at the registry and in the courtroom and shall contain the names of the parties, the lawyers and the representative of Principal State Counsel’s Office instructed to make submissions in the case.”
In practice, however, the parties and their lawyers were entitled to ascertain the date of the hearing by telephoning the registry of the Court of Cassation or requesting it by ordinary mail to inform them of the date in writing. That practice was long established and its existence was reiterated in the Court of Cassation’s annual report for 1997/98.
However, the Law of 14 November 2000 (see paragraph 26 below) repealed the second and third paragraphs of Article 420 ter of the CCP, bringing the arrangements for notifying the parties of hearings in criminal cases into line with those laid down in the second paragraph of Article 1106 of the Judicial Code.
24. At the material time Article 1107 of the Judicial Code provided:
“After the report has been read out, submissions shall be heard from the lawyers present at the hearing. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal.
Principal State Counsel’s Office shall then make its submissions, after which no further documents shall be accepted.”
However, since Borgers v. Belgium (judgment of 30 October 1991, Series A no. 214-B), the Court of Cassation had allowed the parties or their lawyers to address the court a second time after State Counsel had made his submissions. The parties could also seek an adjournment in order to give themselves additional time to prepare their submissions in reply, which could, moreover, take the form of a memorandum for the deliberations (note en délibéré). Such requests were systematically allowed by the Court of Cassation. In the rare cases in which State Counsel’s submissions had been prepared in writing and communicated to the court before the hearing, a copy was also sent to the parties before the hearing. The Committee of Ministers of the Council of Europe took note of those judicially initiated procedural amendments in its Interim Resolution DH (98) 133 of 22 April 1998.
25. In a letter of 22 November 2001 to the Minister of Justice, Principal State Counsel at the Court of Cassation made the following observations in relation to the present case:
“In the instant case the submissions were made orally and the parties did not reply to them, either orally or by submitting a memorandum for the deliberations, as they were entitled to do, if necessary after an adjournment which they would have been granted in accordance with standard practice if they had requested it. By establishing this practice in a statutory instrument, the Law of 14 November 2000 confirmed that the practice complied with the requirements of European case-law.”
26. A law of 14 November 2000, which came into force on 29 December 2000, amended Article 1107 of the Judicial Code as follows:
“After the report has been read out, Principal State Counsel’s Office shall make its submissions. Submissions shall then be heard from the parties. Their addresses shall relate exclusively to the issues of law raised in the grounds of appeal or to objections to the admissibility of the appeal or of particular grounds.
Where the submissions of Principal State Counsel’s Office are in writing, the parties may, at the very latest during the hearing and solely in reply to those submissions, submit a memorandum in which they may not raise any new grounds of appeal.
At the hearing each party may seek an adjournment in order to reply orally or by means of a memorandum to the written or oral submissions of Principal State Counsel’s Office. The Court shall fix the time-limit for submitting the memorandum.”
27. Other relevant provisions of the Judicial Code read as follows:
“The rules set out in this Code shall apply to all proceedings, except such as are governed by statutory provisions which have not been expressly repealed or by principles of law whose application is not compatible with that of the provisions of this Code.”
“The file shall include the following:
...
6. State Counsel’s opinion;
...
A list of documents, kept up to date by the registrar and indicating the date on which the documents were submitted, shall be appended to the file.”
“In so far as no derogation is laid down in the provisions of this Book, the rules concerning first-instance procedure shall be applicable to appeal proceedings.”
28. Section 26 of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court, as worded at the material time, provided:
“(1) The Administrative Jurisdiction and Procedure Court shall give a preliminary ruling, in the form of a judgment, on questions concerning
(i) contravention by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution of the rules laid down by or pursuant to the Constitution to determine the respective powers of the State, the Communities and the Regions;
(ii) without prejudice to (i) above, any conflict between decrees or rules as contemplated by Article 134 of the Constitution promulgated by different legislative authorities, provided that the conflict stems from the scope of the decrees or rules in question; and
(iii) contravention of Articles 10, 11 and 24 of the Constitution by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution.
(2) A court before which a preliminary question has been raised must seek a ruling on the matter from the Administrative Jurisdiction and Procedure Court.
However, the court shall be exempted from this obligation where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling.
A court whose decisions are open to challenge in the form of an ordinary appeal, a petition to reopen proceedings, an appeal on points of law or an application for judicial review in the Conseil d’Etat shall also be exempted from this obligation
(i) where the Administrative Jurisdiction and Procedure Court has already given a ruling on a question or appeal having the same object;
(ii) where it considers that the reply to the preliminary question is not essential for it to be able to give judgment; or
(iii) where it is manifestly apparent that the law, decree or rule contemplated in Article 134 of the Constitution does not contravene any rule or Article of the Constitution contemplated in section 26(1).”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23717
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SAWALHA v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Johnny Sawalha, is a Swedish national, who was born in 1968 and lives in Södertälje.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was accused of having committed three criminal offences. The first charge regarded the applicant’s involvement in the transport of 1842 grams of cocaine and the second charge concerned an amount of 0.86 grams of cocaine found in his home. The third charge concerned a doping offence. The applicant denied the first two charges but admitted the third. He was deprived of his liberty from 17 March to 3 May 1999.
On 7 May 1999 the District Court (tingsrätten) of Sollentuna gave judgment. Regarding the first charge, the District Court found that the applicant’s involvement in the crime – receiving narcotics for the purpose of storing and transferring them – did not correspond to what the applicant was charged with in the bill of indictment. The first offence had not therefore been made out. Regarding the second charge, the District Court stated that there was not sufficient evidence to convict the applicant. He was convicted of a doping offence (dopningsbrott) and fined. He was thus acquitted by the District Court on two out of the three charges.
The Prosecutor appealed against the acquittals on the two charges on 7 May 1999, i.e. the same day the District Court gave judgment. In his submissions, the wording of the bill of indictment was amended in regard to the first charge so as to cover applicant’s involvement in the crime (i.e. receiving narcotics for the purpose of storing and transferring them). Regarding the second charge, the Prosecutor called a new witness.
The applicant was detained on 16 May 2000. He claims that after the District Court’s acquittal, he had been working both in Sweden and abroad. He alleges that, during this time, i.e. over a year, he did not receive any summons to appear before the Court of Appeal. His arrest thus came unexpectedly.
On 17 May 2000, during the hearing at the Svea Court of Appeal (Svea hovrätt), he was placed under formal arrest (häkte) on the basis that he was suspected on reasonable grounds of an attempt to commit an aggravated narcotics offence and that there was a risk that he would run away or seek to escape prosecution or punishment. The applicant opposed his detention arguing that he had not been served with any summons to appear before the Court of Appeal and that he had not failed to appear. In the judgment, which was pronounced the same day, the Court of Appeal found that the applicant was guilty on both charges which had been the subject of the appeal and sentenced him to nine years’ imprisonment. He alleges that it did not examine his defence counsel’s objection that he had not had sufficient time to meet the applicant before the hearing.
In the written appeal pleadings to the Supreme Court (Högsta Domstolen), the applicant argued that the required evidentiary standards in criminal cases had not been satisfied and that there was no evidence to support the charge that he had been involved in the transport of the narcotics. The only thing he had stated himself before the Court of Appeal was that he had been supposed to store a package which he thought had contained hash or marijuana. Regarding the narcotics found in his home, he argued that he had not known about the narcotics and that they probably belonged to the person whose passport had been found next to them. He was represented by the same defence counsel throughout the proceedings.
The Supreme Court refused leave to appeal on 16 June 2000.
The applicant subsequently requested a re-opening of his case arguing that there had been a miscarriage of justice since he had been arrested (anhållen) on 16 May 2000, over a year after having been acquitted by the District Court, and convicted the day after without having had a proper opportunity to prepare his defence with his defence counsel. He relied on Article 6 § 3 (b) of the Convention. On 9 October 2000 the Supreme Court rejected this request.


ITEMID: 001-95323
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TRAJCE STOJANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-e;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicant was born in 1973 and lives in Štip.
7. On 10 July 1998 the Štip Court of First Instance (“the trial court”) ordered an indefinite security measure against the applicant, who was a deaf mute, of “compulsory psychiatric treatment and confinement in a medical institution of a closed type” (задолжително психијатриско лекување и чување во здравствена установа од затворен тип) (“the confinement order”) for causing “serious bodily injury” and “endangering another with a dangerous implement in a fight or quarrel”. The court established that on 23 October 1995 an incident had taken place in the court building between Mr I., the applicant's father, and Mr D., as parties summoned to attend a hearing scheduled for that day. The applicant intervened in the quarrel and knocked Mr D. down. Mr D. sustained severe head injuries and a brain haemorrhage as a result of the fall and died seven days later. The applicant also hit a judge several times. He was subsequently prevented from assaulting a third person. The court found that the applicant was “slightly mentally retarded” and considered aggressive and a danger to the public, in particular villagers whom he had allegedly often assaulted. Two medical reports drawn up by three psychiatric experts confirmed that the applicant was mentally ill, and needed medical treatment in a specialised psychiatric hospital.
8. The confinement order was enforced immediately. The applicant was placed in the Negorci Hospital for Mental Diseases (hereafter “the hospital”).
9. On 28 October 1999 the hospital requested the trial court to amend the confinement order and release the applicant on condition that he undergoes compulsory psychiatric treatment. It based its proposal on the applicant's good behaviour in the past, the good relations he had established with the staff and other patients and the absence of any neurotic or psychiatric disorder since his confinement. The hospital noted that the applicant was mentally ill, which was a permanent state that could not be regarded as a disease. The public prosecutor supported the hospital's proposal.
10. In submissions of 16 June 2000, the applicant's sister requested that the trial court decide on the hospital's proposal. A petition signed by over seventy villagers, indicating that the applicant had been never dangerous and had been accepted in the village, was also attached to the request.
11. The trial court, in a decision confirmed on appeal, dismissed the hospital's proposal relying on a notification by police, according to which the applicant had left the hospital several times and his visits to the village had been perceived as a threat and a danger by the local inhabitants. The police also referred to an incident of 1 January 2001 involving the applicant and Mr D.'s son. In a court decision of 11 February 2002, confirmed on appeal, Mr D.'s son was acquitted, as having acted in self-defence, of causing grievous bodily injury to the applicant. The court also referred to another petition signed by many villagers, which allegedly had been attached to the notification.
12. On 3 April 2003 the hospital lodged with the trial court a fresh proposal for the applicant's conditional release, which was based on similar grounds to those of the previous review: good relations with the staff and other patients; no disturbance of order; mild drug therapy. The proposal was made with the stated aim of a faster and more efficient re-socialisation and reintegration of the applicant. The applicant was transferred to an open ward of the hospital. The public prosecutor supported the hospital's proposal.
13. In submissions of 25 April 2003, the applicant, who was represented by Mr Garazov, informed the court that his father intended to change residence and had consequently bought an apartment elsewhere.
14. On 24 September 2003 the trial court requested the police to make an inquiry into whether the applicant had caused problems during his stay in the village and whether he had been a danger to the local inhabitants.
15. On 20 November 2003 the trial court dismissed the hospital's proposal, relying on a police report of 13 October 2003. It stated, inter alia, that:
“...the applicant left the hospital several times and went to stay with his father...the last visit was in August 2003...after his arrival in the village, he started shouting out some indistinct words...although he was noticed by the inhabitants, there were no attacks on other persons...during the four-day stay in the village, he was always with his father. His presence in the village frightened, in particular, the immediate neighbours, who protected themselves by shutting up their houses and barring them from inside. Many inhabitants said that the applicant was under the psychological influence of his father, who – when intoxicated – had often provoked him by telling lies about the death of his mother and had thus made him aggressive towards some people. Local inhabitants therefore still feared the applicant's aggression...”
16. On 6 January 2004 the applicant left the hospital without consent and remained at large until 8 June 2004, when the police returned him.
17. On 9 February 2004 the applicant complained that the trial court had not based its decision on relevant facts, arguing that the expert opinions of the hospital and the responsible medical officer who had treated him were the only evidence relevant for the court. He maintained that in case of misgivings as to the validity of the hospital's opinion, the court should have obtained an alternative medical expertise. In submissions of 31 March 2004, the public prosecutor supported the applicant's appeal and his request that the case be remitted for fresh consideration.
18. On 13 April 2004 the Štip Court of Appeal dismissed the applicant's appeal and stated that the hospital's proposal was irrelevant since it was not binding on the court. It ruled that on the basis of the results of the medical treatment it was free to decide whether the applicant was fit to be discharged from the hospital and treated on release. Lastly, it concluded that the applicant had escaped from the hospital several times and had presented a threat to the public. It was therefore too early to consider him fit for release.
19. No further annual reviews were carried out until the hospital's fresh proposal of 7 November 2008 (see paragraph 21 below).
20. Since 14 February 2007 the applicant has been placed in a semi-open ward of the hospital, where he is responsible for the maintenance and hygiene of the ward. He cannot leave the hospital at will, unless authorised by a doctor. His last unauthorised leave from the hospital dates back to 11 September 2007. The police returned him after 13 days. After that incident, a decision was taken that the applicant be allowed to leave the hospital. Between October 2007 and September 2008 the applicant was given leave on four occasions, each time lasting not more than a month. During this so-called “therapy probationary leave”, the applicant received the prescribed therapy and his father took care of him. His mental health was stable and required no special supervision.
21. On 7 November 2008 the hospital unsuccessfully applied for replacement of the confinement order with the applicant's conditional release, which was now to be accompanied by removal of his legal capacity and appointment of a guardian (старател). The latter was based on the hospital's view that the applicant's father was unfit to take proper care of him. At a public hearing held on 27 November 2008, and after consulting two doctors from the hospital and a Social Care Centre representative, the trial court found no one suitable to be appointed as the applicant's guardian, if released. No information was provided as to whether the applicant appealed against this decision.
22. The relevant provision of the Criminal Proceedings Act (“the Act”) reads as follows:

Section 483
A court which at first instance has ordered compulsory psychiatric treatment and confinement in a medical institution may discontinue the order and release the perpetrator from the medical institution of its own motion or upon a proposal lodged by the medical institution or the custodial institution and after hearing the public prosecutor. It shall so decide if, after consulting the medical officer, it finds that there is no need for medical treatment and confinement of the perpetrator in the institution. It can order his or her release on condition that he or she undergoes compulsory psychiatric treatment.
23. The relevant provisions of the Criminal Code read as follows:
Article 63
Compulsory psychiatric treatment and confinement in a medical institution
“(1) The court shall order the compulsory psychiatric treatment and confinement in a medical institution of a perpetrator who has committed an offence while of unsound mind or with a substantial mental deficiency if it finds that, due to that condition, he or she may reoffend and that medical treatment and confinement in such an institution is warranted to prevent him or her from doing so.
(2) The court shall discontinue the measure set forth in paragraph 1 when it finds that there is no need for medical treatment and confinement of the perpetrator in the medical institution.
...
(4) The court shall review the need for medical treatment and confinement in a medical institution every year.”
Article 64
Compulsory psychiatric treatment on release
“(1) The court shall order compulsory psychiatric treatment on release of a perpetrator who has committed an offence while of unsound mind if it finds that, due to that condition, he or she may reoffend and that medical treatment on release would be sufficient to prevent him or her from doing so.
(2) The measure set forth in paragraph 1 may be imposed on an offender who has already undergone compulsory psychiatric treatment and confinement in a medical institution when, on the basis of the results of the medical treatment, the court determines that his or her treatment and confinement in a medical institution is no longer necessary...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-e