ITEMID: 001-59455
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF Z AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;No separate issue under Art. 8;No violation of Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 9. The applicants are four full siblings:
– Z, a girl born in 1982;
– A, a boy born in 1984;
– B, a boy born in 1986;
– C, a girl born in 1988.
10. The applicants' parents were married in November 1981.
11. The family was first referred to social services in October 1987 by their health visitor due to concerns about the children and marital problems. Z was reported to be stealing food at night. Following the referral, a professionals' meeting, involving the relevant agencies, was held on 24 November 1987, at which it was decided that a social worker and health visitor should visit. The family were reviewed at a further meeting in March 1988 and as it appeared that concerns had diminished, the file was closed.
12. In September 1988 a neighbour reported that the children were locked outside the house for most of the day.
13. In April 1989 the police reported that the children's bedrooms were filthy. The family's general practitioner also reported that the children's bedrooms were filthy and that their doors were locked. The children's head-teacher, Mrs Armstrong, expressed concern in May 1989 and requested a case conference. In June 1989 the NSPCC (National Society for the Prevention of Cruelty to Children) and the emergency team made a referral after complaints by neighbours that the house was filthy and that the children spent most of the day in their bedrooms, rarely being allowed out to play, and crying frequently. In August 1989 the maternal grandmother complained to the social services about the mother's care and discipline of the children.
14. At a professionals' meeting on 4 October 1989, at which the social services, the applicants' head-teacher, the applicants' general practitioner and health visitor attended, it was decided that no social worker would be allocated to the family. The school was to monitor the older children's weight and the health visitor was to continue to visit the family regularly. It was agreed that the problem was one of limited and neglectful parenting rather than a risk of physical abuse, and that the parents should be assisted to manage their responsibilities better.
15. In October 1989, whilst the applicants were on holiday, their house was burgled. On entering, the police found it in a filthy state. Used sanitary towels and dirty nappies were discarded in a cupboard and the children's mattresses were sodden with urine. At a professionals' meeting on 13 December 1989, the health visitor requested that the four older children be placed on the Child Protection Register as she felt that their mother could not offer consistent care. This suggestion was rejected. However, a social-work assistant, Ms M., was assigned to the family. It was not considered appropriate to convene a case conference at this stage. Prior to the meeting, Z and A had mentioned to the head-teacher that A had been hit with a poker. It was decided that this statement would be investigated.
16. At a professionals' meeting on 23 March 1990, an improvement was noted in respect of the cleanliness of the house, the children's bedding being clean save on two occasions. However, it was reported that Z and A were taking food from bins at the school. There was still considered to be cause for concern, especially since the birth of another child was expected.
17. At a professionals' meeting on 11 July 1990, the applicants' headmistress reported a deterioration in the children's well-being; Z and A were still taking food from bins and A was soiling himself. Ms M. was visiting weekly at this stage and said that she was checking the children's bedrooms. She had noted that the children ate at 4 or 4.30 p.m. and then did not eat again until the morning. The children were also sent to bed at 6 p.m. It was planned to give the applicant's mother further assistance through a voluntary agency.
18. In or about September 1990, A and B were both reported to have bruising on their faces. The police investigated after neighbours had reported screaming at the applicants' home but apparently found no signs of bruising. They reported to the social services that “the conditions of the house were appalling and not fit for [the] children to live in”.
19. At a further professionals' meeting on 3 October 1990, the assistant social worker, Ms M., stated that she was concerned about the applicants' soiling and their mother's lack of interest. Apparently, the children were defecating in their bedroom and smearing excrement on their windows. The head-teacher expressed concern, particularly concerning the boys A and B, and stated that the children had described blocks of wood being placed against their bedroom doors. It was decided to continue monitoring the children.
20. At a professionals' meeting on 5 December 1990, a decision was made to arrange a case conference for January 1991 as a result of concern regarding the applicants' care and the state of their bedroom. Ms M. considered that standards in the boys' bedroom had dramatically dropped. She found the room to be damp and smelly. A's bed was broken and had a metal bar protruding from it. The bedding was damp and grubby with soil marks.
21. In a report dated 24 January 1991, the headmistress stated that A was shabby, ill-kempt and often dirty and that he had been raiding the playground bins for apple cores. Z was pathetic, lacking in vitality and frequently and inexplicably tearful, becoming increasingly isolated from the other girls in her peer group with unfortunate incidents in which detrimental remarks were made about her appearance. B presented as withdrawn, pathetic and bedraggled. He regularly arrived cold, was frequently tearful and craved physical contact from adult helpers. He also appeared to crave for food. She concluded that they were still concerned that the children's needs were not being adequately met and that home conditions and family dynamics were giving reasons for concern.
22. At the case conference held on 28 January 1991, Ms M. stated that the boys' bedroom had no light, carpet or toys and that their bedding was wet, smelly and soil-stained. Their mother did not change the beds. Their head-teacher stated that Z was tearful and withdrawn, A had been raiding school bins and was often dirty, and B was very withdrawn, craved attention and was ravenously hungry. The chairman of the conference concluded that, despite the many concerns about the parenting of the applicants and the conditions in the home, there was little evidence to support going to court. It was felt that the parents were not wilfully neglecting their children and, bearing in mind their own poor upbringing, it was considered that the applicants' parents were doing what they could and that continued support was required to try and improve the situation. It was decided not to place the children on the Child Protection Register.
23. On 5 March 1991 B was found to have “unusual” bruises on his back.
24. At a later social services meeting in April 1991, no change to the children's living conditions was noted. The head-teacher stated that Z and A were still taking food from bins and that A was becoming more withdrawn. Ms M. reported that the mother had stated that the children were taking food from the park bins on the way to school.
25. In July 1991 the applicants' mother informed social services that the children would be better off living in care. On 12 August 1991 the social services received a phone call from a neighbour who stated that the children were frequently locked outside in a filthy back garden, that they constantly screamed and that they were kept for long periods in their bedrooms where they smeared faeces on their windows. The maternal grandparents later told the guardian ad litem that Z, who was treated by her mother as a little servant, was expected to clean the excrement from the windows.
26. From 19 to 28 August 1991, the three older children spent some time with foster carers in respite care. The foster carers reported that A did not know how to wash, bathe or clean his teeth on arrival. He wet his bed every night and stole food from his brother. B was described as being “very frightened. He could not understand how he could play in the garden and the door was left open for him to come back in, he expected to be locked out”. He also had to be taught to use the toilet properly and to clean himself.
27. At a professionals' meeting on 18 September 1991, Ms M. stated that the conditions in which the boys were sleeping were deteriorating. The mattresses in the boys' bedroom were ripped and the springs were coming through. The boys were stealing food, and C had also been seen to do this. Their mother stated that she could not control them. It was decided not to arrange a child-protection meeting but to carry out a monthly weight check on the three older children at school, and for the health visitor to check the weight of the two younger children. It was also decided to arrange respite care for Z, A and B in the holidays as well as on one weekend in four.
28. In November-December 1991 C was found to have developed a squint. His mother failed to keep appointments at the eye-clinic over the following months.
29. At a professionals' meeting on 21 November 1991, it was reported that the applicants' mother had said that she could not control the applicants' behaviour which consisted of refusing to go to bed when asked and stealing food. It was considered that the home was in an acceptable condition, though the boys' room still needed attention. The children's weights were recorded. It was noted that Z had put on 2 lb in the previous two months whereas she had only put on 2.5 lb in the preceding two years. A had only put on 3 lb in a year. B had put on 0.5 lb in a year and was on the 50th centile for height. C was on the 25th centile for weight. There was a discussion about the three elder children being accommodated by the local authority to allow the mother “to get back on her feet”. The social services considered a six-week period whilst the general practitioner envisaged a period of eighteen to twenty-four months.
30. In December 1991 a social worker was introduced to the applicants' mother with a view to assisting her with shopping, budgeting and cooking.
31. Z, A and B were accommodated by volunteers between January and March 1992, and showed to have gained weight. In March and again in April, their mother asked if the boys, A and B, could be placed for adoption.
32. On 14 January 1992 C started to attend a nursery group at a family centre. She was noted to be unsocialised, lacking in confidence, unable to share, and with poor speech.
33. At a further professionals' meeting on 9 March 1992, it was decided that further respite care would be considered. The children's weights were noted, increases being seen for Z, A and B.
34. The children's parents divorced in April 1992.
35. At another professionals' meeting on 30 April 1992 it was decided that the applicants' mother's request that A and B be placed for adoption be followed up. The headmistress voiced concern over the fundamental pattern of the mother's care of the children, in particular in relation to Z's role in the home and the mothering role which she played. Ms M. reported that conditions were deteriorating for A and B.
36. On 10 June 1992 the applicants' mother demanded that the children be placed in care as she could not cope. She stated that if they were not removed from her care she would batter them. The applicants were placed in emergency foster care. The applicants were entered onto the Child Protection Register under the categories of neglect and emotional abuse after a child-protection meeting on 22 June 1992.
37. The applicants were all fostered separately. Initially, Z was noted to have dirty, ill-fitting clothes. She stated that she did not like living with her siblings as she did not like having to look after them all the time. A wet the bed every night, shunned physical contact and suffered from nightmares. B did not know how to use the toilet or toilet paper. C bonded very quickly with her foster parents.
38. On 8 October 1992 the local authority decided to seek care orders in respect of the children. Interim care orders were made on 7 December 1992.
39. A guardian ad litem, who was appointed on 18 January 1993, recommended that all the applicants should be the subject of care orders in order to protect them from further harm. She stated that there was “an abundance of evidence that the children have been subjected to physical and mental ill-treatment”. She noted that their health had also been neglected by their parents who frequently missed appointments with opticians and doctors.
40. All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother's behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.
41. Full care orders were made in respect of the applicants on 14 April 1993 by Judge Tyrer sitting at Milton Keynes County Court.
42. In June 1993 the Official Solicitor, acting as the applicants' next friend, commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty arguing that the authority had failed to have regard to their welfare as was required by statute and should have acted more quickly and more effectively when apprised of their condition. It was argued that the local authority's failure to act had resulted in psychological damage. The application was struck out as revealing no cause of action, by Mr Justice Turner on 12 November 1993.
43. The applicants appealed to the Court of Appeal, which, on 28 February 1994, upheld the decision of Mr Justice Turner to strike out the application.
44. The applicants appealed to the House of Lords. On 29 June 1995 the House of Lords rejected their appeal, finding that no action lay against the local authority in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under the Children Act 1989 in respect of child care. The case is reported as X and Others v. Bedfordshire County Council [1995] 3 All England Law Reports 353.
45. Lord Browne-Wilkinson gave the leading judgment. In respect of claims for breach of statutory duty, he stated, inter alia:
“... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...
When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”
46. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson stated, inter alia:
“I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 AC 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...
The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.
First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in 'Working Together' the protection of such children is not the exclusive territory of the local authority's social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of 'Working Together' runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.
Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child's family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) ('Cleveland Report 1987') said, at p. 244:
'... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.'
Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.
The relationship between the social worker and the child's parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.
If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.
Finally, your Lordships' decision in Caparo [1990] 2 AC 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child's welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”
47. Z and C, the two girls, were meanwhile adopted. The boys, A and B, were initially in foster care. Following the breakdown of B's adoptive placement, he was placed in a therapeutic residential placement in July 1995. After two years, he was again placed with foster parents where he remained, attending school in a special-needs group. In January 1996, A was placed in a therapeutic community, where he stayed for two years. He apparently had a number of foster placements which broke down. Records indicated that he had been in twelve different placements in eight years. He is currently in a children's home.
48. In March 1996, applications were made to the Criminal Injuries Compensation Board (CICB) on behalf of all the children by the adoption society to whom the local authority had delegated certain responsibilities. It was claimed on behalf of Z that she had suffered severe neglect and chronic deprivation which rendered it likely that specialist care would be necessary during her adolescence, a time where emotional repercussions of the abuse might become apparent; on behalf of A that he had suffered physical deprivation, emotional abuse, physical abuse and possible sexual abuse – he had suffered permanent physical scarring and was still receiving treatment from a child psychiatrist; on behalf of B that he had suffered extreme physical and emotional deprivation and shown signs of sexual abuse – he also had suffered permanent physical scarring and was receiving therapy; and on behalf of C that she had suffered extreme physical and emotional deprivation, and in addition that her need for eye treatment was not being met by her parents.
49. In February 1997, the CICB awarded 1,000 pounds sterling (GBP) to Z, GBP 3,000 to A and GBP 3,000 to B for injuries suffered between 1987 and 1992; it awarded GBP 2,000 to C for injuries suffered between 1988 and 1992. In a letter dated 20 May 1998 from the CICB to the Official Solicitor, it was stated:
“The Board Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the Board could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury – physical or psychological – directly attributable to a crime of violence ... He was nevertheless satisfied, that setting aside 'neglect' the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child ...”
50. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority's duty in respect of child care was governed by the Child Care Act 1980.
Sections 1 and 2 of the Child Care Act 1980 provided that:
“1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.
2. (1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen -
(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;
(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and
(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.”
51. Section 17 of the Children Act 1989 has since provided, inter alia:
“17. Provision of services for children in need, their families and others
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
...
(10) For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or
(c) he is disabled ...
(11) ...; and in this Part
'development' means physical, intellectual, emotional, social or behavioural development; and
'health' means physical or mental health.”
52. Part III of the Children Act 1989 deals with local authority support for children and families. The policy of the Act is made clear by paragraph 7 of Part I of Schedule 2, which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children.
53. Section 20 provides that
“20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
...
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.”
54. Part V of the Children Act 1989 deals with the protection of children. Section 47 provides as follows:
“47(1) Where a local authority -
...
(b) have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.
...
(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take action (so far as it is within their power and reasonably practicable for them to do so).”
55. The complaints procedure is provided by section 26 of the Children Act 1989:
“Review of cases and inquiries into representations
...
(3) Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by -
(a) any child ... who is not being looked after by them but is in need;
(b) a parent of his;
...
(e) such other person as the authority consider has a sufficient interest in the child's welfare to warrant his representations being considered by them,
about the discharge by the authority of any of their functions under this Part in relation to the child.
(4) The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in -
(a) the consideration; and
(b) any discussions which are held by the local authority about the action (if any) to be taken in relation to the child in the light of this consideration.
...
(7) Where any representation has been considered under the procedure established by the local authority under this section, the authority shall -
(a) have due regard to the findings of those considering the representation; and
(b) take such steps as are reasonably practicable to notify (in writing) -
(i) the person making the representation;
(ii) the child (if the authority consider that he has sufficient understanding); and
(iii) such other persons (if any) as appear to the authority to be likely to be affected,
of the authority's decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.
(8) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate.”
56. The powers of the Secretary of State to investigate the actions of the local authority are set out in sections 81 and 84 of the Children Act 1989.
“81. (1) The Secretary of State may cause an inquiry to be held into any matter connected with -
(a) the function of the social services committee of a local authority, in so far as those functions relate to children;
...
84. Local authority failure to comply with statutory duty: default power of Secretary of State
(1) If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty.
...
(3) Any order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appears to the Secretary of State to be necessary.
(4) Any such directions shall, on the application of the Secretary of State, be enforceable by mandamus.”
57. In England and Wales there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there is a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation.
58. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care, and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship of proximity to the defendant; and,
– that it is fair, just and reasonable to impose liability on the defendant.
These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries plc v. Dickman ([1990] 2 Appeal Cases 605).
59. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.
60. The decision in X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353) is the leading authority in the United Kingdom in this area. It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The leading judgment is reported at length in the facts above (see paragraphs 45-46 above).
61. Since X and Others v. Bedfordshire County Council, there have been two further significant judgments regarding the extent of liability of local authorities in child care matters.
62. The Court of Appeal gave judgment in W. and Others v. Essex County Council ([1998] 3 All England Law Reports 111). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G., a 15-year-old boy, in their home although they knew that he was a suspect or known sexual abuser. During G.'s stay in their home, the plaintiffs' three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants' application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents' claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal's findings as follows:
“(1) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion, if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred, there was no a priori reason for excluding common law liability. In the instant case, the giving of information to the parents was part and parcel of the defendants' performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children's injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ...
(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...”
63. On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents' claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed.
64. The House of Lords gave judgment on 17 June 1999 in Barrett v. London Borough of Enfield ([1999] 3 Weekly Law Reports 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to 17 years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff's appeal, unanimously held that the judgment in X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.
65. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care:
“(1) Although the word 'immunity' is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v. Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”
66. At the relevant time, Order 18, Rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.
67. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant's pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.
68. The striking out procedure, now contained in Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia, by allowing a court to decide promptly which issues need full investigation and trial, and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-5855
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: RAJKOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Croatian citizen, born in 1920 and living in Zagreb (Croatia). He is represented before the Court by Mr Milorad Lukač, a lawyer practising in Zagreb (Croatia). The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army and, according to the Government, in 1959 he retired from service. The applicant claims that he retired from service in 1960. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund.
In 1991 Croatia enacted a law adopting the former Yugoslav law that had regulated the pension and disability rights of the military personnel. During 1991 and 1992 that law was changed several times by decrees of the Croatian government and acts of Parliament.
On 12 December 1992, the Croatian Social Security Fund, Zagreb Office, assessed the applicant’s pension, as from 1 October 1992, at 63,22 % of the amount he had received until and in December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court (Upravni sud Republike Hrvatske), which dismissed the applicant’s claim on 8 July 1993.
On 18 October 1993 the Croatian Parliament passed a law on the regulation of pensions of the former Yugoslav People’s Army officers that, among other provisions, reiterated that the amount of the former Yugoslav Army officers’ pension shall be 63,22 % of what they had received in December 1991.
On 25 March 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court had violated his constitutional rights to protection of property and not to be discriminated against.
On 1 January 1999 the Parliament enacted new legislation regulating the pension rights of all Croatian citizens, including the former Yugoslav Army officers.
On 28 April 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s claim. The decision was reasoned as follows:
“The rights of military pensioners, who retired before 8 October 1991 and who had been citizens of the Republic of Croatia with residence therein and in respect of whom the payments of their pensions were terminated by the Social Security Fund of Military Personnel, were regulated by the Act then in force incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Military Pensions Act), which is to be applied in the Republic of Croatia as its own law.
Section 1 of the Decree that altered the Military Pensions Act, which is to be applied in the Republic of Croatia as its own law, served as a basis to determine the amount of the applicant’s pension by the first instance decision. That section altered section 3b, § 2 of the above mentioned Act, providing that pensions determined by section 3b § 1 of the same Act will be paid in the amount of 63,22 % of what had been paid in December 1991.
The Constitutional Court has determined that the challenged acts were based on the laws that were in force at that time and that the applicant’s constitutional right on which he relies in his claim was not violated.”
Section 1 of the Decree that altered the Military Pensions Act (Official Gazette no. 71/92 of 28 October 1992), which was to be applied in the Republic of Croatia as its own law, provided that the former Yugoslav People’s Army officers’ pensions should be paid in the amount of 63,22 % of what had been paid to them in December 1991.
Section 14 of the Croatian Constitution provides as follows:
“Citizens of the Republic of Croatia shall enjoy all rights and freedoms, regardless of race, colour, sex, language, religion, political cal or other opinion, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”


ITEMID: 001-71083
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NAGULA v. ESTONIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Eduard Nagula, is a Russian national who was born in 1934 and lives in Sochi, Russia. The respondent Government were represented by Mrs M. Hion, Director of the Human Rights Division in the Legal Department of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in Vasilkov, Ukraine. From 1957 to 1985 he served as a career officer in active service with the Soviet armed forces in different parts of the former Soviet Union. In 1981 he moved to Estonia to serve there.
In 1982 the applicant’s wife, Mrs Emma Nagula, whom he had married in 1959 in Oriol, the Russian Federation, his mother-in-law, Mrs Zinaida Nabokova (born in 1912) and his son, Mr Konstantin Nagula (born in 1960), moved to Estonia. Mrs Zinaida Nabokova and Mr Konstantin Nagula currently live in Estonia and both hold permanent residence permits.
In 1985 the applicant was assigned to the reserves. In 1988 he began work as a taxi driver in Tallinn. His wife also worked as a civilian. The applicant’s mother-in-law needs taking care of due to her age.
On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory.
On 1 January 1995 the applicant was discharged from the Russian naval forces with the rank of senior captain.
In 1995 the applicant and his wife applied, unsuccessfully, for a flat near Moscow under a Russian aid programme.
On 20 March 1995 the applicant and his wife applied for residence permits in Estonia. On 2 July 1996 they were issued with temporary fiveyear residence permits.
On 18 November 1996 the applicant submitted an application for a flat in Russia under an aid programme run by the United States of America. The application form was in Russian and contained the words “United States Agency for International Development” in its header.
On the application form, which the applicant signed, it was stated that if his application were to be approved and he were to be allocated a flat under the aid programme, he and his family, before moving to Russia and obtaining registration of residence (propiska), keys to the flat and authorisation to use it (order), must vacate the dwelling at their disposal in Estonia, cancel their registration of residence there and not seek to stay in the Baltic countries as permanent residents. It further stated that in the future the applicant would be allowed to visit the Baltic countries only as a foreign visitor. It stated that he and his family did not own a dwelling in the Baltic countries and that they would not seek to acquire ownership of or sell the dwelling at their disposal at that time, and that they had not received and would not receive any payment for vacating their current dwelling. The applicant also confirmed that at the time of signing the application he and his family did not have any other dwelling in Russia. According to the application form participation in the programme was voluntary; the person signing stated that he was aware that in the event of failure to leave the Baltic country within 45 days and to settle in the dwelling offered to him within three months of receipt of the notice offering it to him, he would lose all his rights to the dwelling under the aid programme. He would become the owner of the dwelling allocated to him only after he had resided there permanently for one year.
According to another form, apparently submitted by the applicant to Abt Associates Inc., one of the companies responsible for implementation of the aid programme under a contract with the United States Agency for International Development, the applicant’s family comprised two members – the applicant himself and his wife.
On 18 April 1997 the applicant requested the Registry Department of the Kesklinn District Authority (Kesklinna Valitsuse Elanike Registriosakond) of the City of Tallinn to cancel his and his wife’s registration of residence at Narva maantee 19-43 in Tallinn in connection with their move to Russia. On 5 May 1997 the request was granted.
Under the aid programme, the applicant was allocated a flat at 32 Tenevoi Street, Sochi. On 1 October 1997 he moved in. On 18 November 1997 the applicant’s residence was registered at that address (he obtained propiska).
In January 2001 the applicant and his wife applied for an extension of their residence permits in Estonia. On 17 July 2001 the Minister of the Interior refused their request. The refusal was based on two grounds. Firstly, the applicant had served as a professional member of the armed forces of a foreign country and had retired from that post. That ground applied also to his wife. Secondly, both the applicant and his wife had committed themselves to leaving Estonia and had been allocated accommodation abroad within the framework of an international aid programme.
The applicant and his wife submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus) which, by a judgment of 9 October 2001, dismissed the complaint. It observed that the Aliens Act provided that the residence permits of former professional members of the armed forces of a foreign country and their family members could be extended only in exceptional circumstances. The order by the Minister of the Interior had not provided grounds as to why such an exception did not apply in the case of the applicant and his wife. Nevertheless, the Administrative Court found the order to be lawful, since the Aliens Act did not in any case permit extension of the residence permits of persons who had committed themselves to leaving Estonia and who had been granted accommodation abroad within the framework of an international aid programme. The Administrative Court agreed with the Minister of the Interior that that ground for refusing the extension was absolute and did not leave the authorities any discretion.
In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus), the applicant and his wife contested the retroactive application of the provision of the Aliens Act refusing extensions of residence permits to persons who had committed themselves to leaving Estonia and who had been granted accommodation abroad within the framework of an international aid programme. The Aliens Act had not contained the disputed provision at the time when the appellants had participated in the aid programme and been granted accommodation in Russia. The appellants argued that their right to have their legitimate expectations fulfilled had been violated, as had the principle of legal certainty. They also noted that the aid programme had been based on a treaty between the United States of America and the Russian Federation; Estonia had not been a party to the aid programme. The applicant and his wife had not undertaken a commitment to leave Estonia vis-à-vis that country.
On 10 April 2002 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. The Court of Appeal held that the principle of legitimate expectation could not extend to preventing the legislator from making any changes to the legislation in force at any point in time. At the time they had decided to take part in the aid programme, the appellants had been aware that on being granted accommodation in Russia they would have to leave Estonia. They had consented to settle in Russia and they had been granted a flat in Sochi in 1997. The appellants could not have had any legitimate expectation that their residence permits would be extended, as the impugned provision had been introduced into the Aliens Act in 1999, that is, before the appellants had submitted their request for extension of their residence permits. The Court of Appeal agreed with the firstinstance court’s assessment that the appellants’ right to family life had not been violated.
The Supreme Court (Riigikohus) refused leave to appeal on 12 June 2002.
Section 12(4) of the Aliens Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended if the alien applying for it had served as a professional member of the armed forces of a foreign state, had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that residence permits could not be issued or extended either for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, by way of exception, a temporary residence permit could be issued or extended for the alien concerned if this was not excluded on other grounds under the same provision.
Section 12(9)(4) of the Aliens Act provided that a residence permit could not in any case be issued or extended if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had been granted accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. In 2001 it was the subject of an amendment which does not appear to be relevant to the present case.
According to the Government, in April and July 1993 the President of the United States of America and the President of the Russian Federation had agreed to undertake a project to provide up to 5,000 units of housing for Russian military officers demobilised from the Baltic countries or elsewhere outside Russia. The Government noted that, as Estonia had not been a party to the agreement, they did not have the originals of the documents at their disposal and could not provide them.
The Government submitted to the Court a copy of the “Russian Military Officer Resettlement Program – Housing Certificate Program” (in English) and the “Russian Military Officer Resettlement Program – Housing Construction Program – Information Digest” (in Russian and in English). These information materials appear to have been handed out by the American organisers of the aid programme to the participating Russian officers.
According to the information material, the “Russian Military Officer Resettlement Program” had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About half of the units of housing were to be built, the rest being provided through a housing certificate programme.
In order to take part in the programme, officers had to submit their discharge order, passport, official confirmation of the size and composition of the family, official confirmation of current residence in the Baltic countries and a signed application for participation in the programme. The latter included statements to the effect that, upon obtaining housing under the programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residence in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign visitors. The officers had to declare that they and their families did not own housing in Russia nor would they own, acquire or sell any dwellings in the Baltic countries, and would not receive any payments for vacating any dwelling. Officers declared their understanding that if they were found to be eligible to participate in the programme and if all the programme’s terms and conditions were met, they would receive a suitable flat (under the housing construction programme) or financial assistance for the purchase of housing units (under the housing certificate programme).
In order to obtain a registration of residence (propiska) for their new flat from the passport office, officers had to present their Russian passport and the Russian passports of all family members along with proof of cancellation of their registration of residence in the Baltic countries (vypiska) for all members of the family. They had to move in within 45 days of notification by the Russian social welfare services or the local authorities, failing which their flat could be reassigned.
Participation in the programme was voluntary; no enrolment fee was required.
After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. On the same day, Estonia and Russia concluded an agreement concerning social guarantees to the retired military personnel of the armed forces of the Russian Federation in Estonia. The treaty and the agreement entered into force on 2 February 1996, having applied on a provisional basis since 26 July 1994, the date on which they had been signed.
Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces. Family members of military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year.
The agreement provided that retired military personnel, that is, persons discharged from the army and receiving a pension, and their family members, could apply for residence permits in Estonia. The Estonian Government could refuse the application for a residence permit on grounds of national security.


ITEMID: 001-76746
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BARROW v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 8. The applicant was born in 1943 and lives in Wrexham.
9. In August 2003 the applicant turned 60 years of age. Prior to that date she was in receipt of long-term incapacity benefit (IB), a benefit payable to people incapable of work who satisfy the eligibility criteria. She had qualified for the rate of 81.85 pounds sterling (GBP) per week. She was also paid GBP 39.95 per week in disability living allowance (DLA) and GBP 15.15 in DLA care. At age 60, which is the date of entitlement to the State pension for women, she ceased to be eligible for IB. In its place she became entitled to draw her state retirement pension which, based upon her contribution record, entitled her to GBP 57.81 per week (about 62% of the maximum rate as she had only contributed for 24 years out of 39). She continued to draw DLA. As a result, the applicant claimed that she was some GBP 24.04 per week worse off as a result of her transition from IB to the State pension.
10. The applicant complained to the Department of Work and Pensions concerning the differential treatment but was informed that nothing could be done.
11. The National Insurance Act 1946, which first established the basis for the national social security scheme in the United Kingdom, set out a system of funding under which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory national insurance (“NI”) contributions into the National Insurance Fund (NIF). This legislation has since been replaced, most recently, by the consolidating provisions of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and the Social Security Administration Act 1992.
12. Section 1(2) of the SSCBA sets out the various classes of NI contribution. Of these, the largest category is Class 1 contributions which consist of earnings-related contributions paid by employers and employees. Such contributions are levied as a percentage of earnings which varies according to the employee’s earnings band. The NI scheme is financed on a “pay as you go” basis, that is, current NI contributions fund current benefits: thus an individual’s contributions fund not his or her own benefits but those of others (R. (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER paras. 25-26).
13. Primary Class 1 contributions to NI cease to be payable on attainment of the State retirement age (section 6(3) of the SSCBA).
14. The NIF is currently the sole source of funding for payment of state retirement pensions as well as a number of other benefits, including IB. Topping up into the fund by way of Treasury Grant is possible in times of shortfall but has not occurred since 1997/1998.
15. The Social Security (Incapacity for work) Act 1994 amended the 1992 Act so as to include provision for the payment of IB from April 1995. Section 1 provides, as relevant:
“... (1) Subject to the following provisions of this section, a person who satisfies either of the following conditions is entitled to short-term incapacity benefit in respect of any day of incapacity for work which forms part of a period of incapacity for work.
(2) The conditions are that -
(a) he is under pensionable age on the day in question and satisfies the contribution conditions specified for short-term incapacity benefit in Schedule 3, Part 1, paragraph 2;
...
(4) In any period of incapacity for work a person is not entitled to short-term incapacity benefit for more than 364 days.
(5) Where a person ceases by virtue of subsection (4) above to be entitled to short-term incapacity benefit, he is entitled to long-term incapacity benefit in respect of any subsequent day of incapacity for work in the same period of incapacity for work on which he is not over pensionable age.”
16. IB is a contributory benefit funded out of NI contributions, designed to compensate a person for financial loss as a result of their inability to work due to ill-health or disability. It is therefore available throughout the assumed working life. As a result the period of entitlement is directly linked, for men and women, to the period of entitlement (if any) to receive the State retirement pension. When an individual reaches State pension age any entitlement to such a pension takes the place of IB. A full basic retirement pension pays GBP 77.45 per week, while the standard rate of IB is GBP 72.15.
17. At the relevant time, section 122 of the Social Security Contributions and Benefits Act 1992 defined “pensionable age” as:
“(a) the age of 65, in the case of a man; and
(b) the age of 60, in the case of a woman”.
18. Women in the United Kingdom therefore become eligible for a State pension at the age of 60, whereas men are not eligible until 65.
19. Section 126 of the Pensions Act 1995 provides for the equalisation of State pension ages for men and women to the age of 65. The State pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in the State pension age.
20. Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”.
21. In its judgment in Case C-328/91 Thomas and Others [1993] ECR I-1247, the European Court of Justice (ECJ) ruled that where, pursuant to Article 7(1)(a), a Member State prescribed different pensionable ages for men and women for the purpose of granting old-age and retirement pensions the scope of the permitted derogation defined by the words “possible consequences thereof for other benefits” was limited to the forms of discrimination existing under other benefits schemes which were necessarily and objectively linked to the difference in pensionable age. That was the position where such forms of discrimination were objectively necessary to avoid disturbing the financial equilibrium of the social security system or to ensure coherence between the retirement pension scheme and other benefit schemes.
22. In Case C-92/94 Secretary of State for Social Security v. Graham [1999] ECR I-2521, the ECJ considered the predecessor of IB, namely invalidity allowance and invalidity pension (both contributory benefits paid from NI contributions until pensionable age or until the cessation of any deferment in pension). It found that the measures were justified by both considerations of financial equilibrium and overall coherence and that the discrimination was necessarily linked to the difference in pensionable age for men and women, inter alia as invalidity benefit was designed to replace income from occupational activity and was replaced by a retirement pension at the age at which the recipients would in any event stop working.
23. The derogation was not however held to justify pension-aged linked discrimination in a number of benefits e.g. in R. v. Secretary of State for Social Security, ex parte Taylor [1999] ECR I-8955, the ECJ held that the provision of winter fuel allowances for the elderly was not necessarily linked to the difference in the statutory age of retirement for men and women and in R. v. Secretary of State for Health ex parte Richardson [1995] ECR I-3407, the ECJ found that the discrimination in age entitlement to free prescriptions was not objectively justified to ensure coherence between the retirement pension system and the regulations concerning prescriptions and was not necessarily linked to the difference between pensionable ages for men and women.
24. In Case C-9/91 The Queen v. Secretary of State for Social Security , ex parte Equal Opportunities Commission [1992] ECR1-4297 (“the EOC case” concerning a reference for a preliminary ruling from the High Court relating to the differing contribution periods applicable to men and women determined according to pensionable age), the ECJ found that:
Article 7(1)(a) had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference;
Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age;
In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the Member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)(a) were to be interpreted restrictively.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-82101
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: NEMAKINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Nina Semenovna Nemakina, is a Russian national who was born in 1945 and lives in Penza, the Penza Region. She was represented before the Court by Mr I.A. Zhulimov, a lawyer practising in Penza. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant brought civil proceedings against the Ministry of Finance of the Russian Federation seeking indexation of her unemployment allowance.
On 31 May 2002 the Leninskiy District Court of Penza found for the applicant and awarded her 5,598.45 Russian roubles (RUR) for indexation of allowance, RUR 378.53 for damages and RUR 1,500 for legal costs. The judgment was upheld on appeal by the Penza Regional Court on 30 July 2002.
On 12 August 2002 the Leninskiy District Court issued a writ of execution. On 14 August 2002 the applicant forwarded the writ of execution to the Ministry of Finance, but the judgment has not been enforced.
On an unspecified date the applicant complained to the Basmannyy District Court of Moscow about the defendant’s failure to enforce the judgment in her favour. By a decision of 28 April 2003 the Basmannyy District Court of Moscow terminated the proceedings for the lack of subject matter jurisdiction. The court held that the applicant’s claim could not be examined in the framework of civil proceedings and that the applicant had to apply for enforcement proceedings in order to oblige the defendant to enforce the judgment. On 28 November 2003 the Moscow City Court upheld the decision.
On 29 March 2006 the judgment of 31 May 2002 was fully enforced.
By a decision of 5 May 2006 the Leninskiy District Court of Penza granted the applicant’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of 31 May 2002. The court acknowledged that the judgment of 31 May 2002 had been enforced with a substantial delay and awarded the applicant RUR 4,486.19 for indexation and RUR 556.2 for legal costs. No appeal was lodged against the decision and it acquired legal force on 16 May 2006.
On 19 December 2006 the applicant received the amounts awarded by the decision of 5 May 2006.


ITEMID: 001-120506
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BONDARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: 1. The applicant, Mr Mykhaylo Valentynovych Bondarenko, is a Ukrainian national, who was born in 1978 and lives in Kyiv. He is represented before the Court by Mr K. Buzadzhy, a lawyer practising in Kyiv.
2. The Ukrainian Government (“the Government”) were most recently represented by their Agent, Mr Nazar Kulchytskyy.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On the morning of 29 August 2002 Ms D. was found dead not far from her home. Experts concluded that she had been strangled at about 1 a.m. the previous night.
5. On 6 September 2002 the applicant was arrested by the police on suspicion of Ms D.’s murder. According to the applicant, at the time of the arrest he was with his brother, who was also taken to the police station.
6. The applicant alleged that several police officers, under the leadership of officer D., had subjected him to physical ill-treatment and psychological pressure with a view to extracting a confession from him. They had allegedly handcuffed him to a table leg and beat him with rubber truncheons, punching him and kicking him in various parts of his body. The applicant also alleged that the beating had worsened when he had requested a meeting with a lawyer, so he signed a waiver refusing his right to legal assistance “for the time being”. He agreed to plead guilty, allegedly under the threat that if he did not, his brother would be tortured. The applicant referred to the fact that the police had lost the black shirt and black trousers in which he had been arrested (see paragraphs 34-35 and 40 below). According to him, the clothes in question had been left torn and bloodstained, and their loss was to be viewed as evidence in support of his allegation of ill-treatment. He also submitted that a request he had made to be examined by a doctor had been refused.
7. According to the investigation authorities, the applicant had confessed to the murder of his own free will. As to the issue regarding his clothes, it transpired that during his arrest he had been wearing the same clothes as had been worn during the night of the murder (a black shirt and black trousers). As a result, the police brought him some sportswear to change into which they had retrieved from his home, so that the clothes in which he had been arrested could be sent away for forensic expert examination with a view to establishing whether they contained any evidence linking him to the crime.
8. On 6 September 2002 the applicant confessed to the incriminated murder. According to him, he did so when he saw that his brother had been released. His confession stated that he had been having an affair with Ms D. since 25 August 2002. On 28 August 2002 he went to see her at her home. Having talked to the applicant briefly, Ms D. left under the pretext that she needed to buy some bread and asked him to wait for her. She returned an hour and a half later, which made the applicant angry. In the course of the argument that followed, Ms D. admitted that she had been having a relationship with another man and verbally insulted the applicant. A fight ensued and the applicant ended up strangling Ms D. with the strap of her handbag.
9. The case file contains a waiver by the applicant of his right to legal assistance dated 6 September 2002, with a handwritten and signed statement as follows:
“I refuse legal representation for the time being. I have been informed of my rights and I understand them.”
10. The applicant repeated his confession when he was questioned as a suspect the same day.
11. On 7 September 2002 a forensic medical expert examined the applicant. The examination report, which was also signed by the applicant, reported that there were no injuries to the applicant’s body and none complained of.
12. The applicant did not mention the expert report in his submissions to the Court. According to him, following his arrest the police had unsuccessfully attempted to transfer him to Lukyanivskyy District Pre-Trial Detention Centre no. 13 (“SIZO no. 13”), the administration of which had allegedly refused to accept him on the grounds that he had serious injuries.
13. On 7 September 2002 a reconstruction of events took place, during which the applicant repeated his confession and explained how he had killed Ms D. The reconstruction took place in the presence of two attesting witnesses and was video-recorded.
14. On 10 September 2002 the applicant signed another waiver of legal assistance, similar to that of 6 September 2002. He also confirmed his earlier statements in full, adding that it had not been his intention to kill Ms D. and that she had provoked him. The applicant alleged in his submissions to the Court that he had done so having been promised a meeting with his parents.
15. Some of the documents in the case file (namely a letter from the Svyatoshynskyy District Police Department to the applicant’s mother dated 29 December 2005 and an information note of the head of the SIZO medical unit of 16 December 2011) suggest that the applicant was transferred from the police detention facility to SIZO no. 13 on 13 September 2002. However, an information note by the SIZO governor of 27 December 2005 addressed “to whom it may concern” suggests that the applicant was held in SIZO no. 13 from 23 September 2002 to 2 October 2004. The applicant also submitted that he had been transferred to the SIZO on 23 September 2002, and that before that, the SIZO had twice refused to accept him as a detainee on account of his unspecified injuries.
16. The aforementioned information note of the head of the SIZO medical unit stated that the applicant underwent clinical, laboratory and Xray examinations upon his arrival to the SIZO on 13 September 2002, with no injuries or other health-related concerns having been discovered. It also stated that the applicant never applied for medical assistance during his detention in SIZO no. 13.
17. On 20 September 2002 a lawyer, M., entered into a legal services agreement with the applicant’s parents.
18. On 23 September 2002 the investigator rejected M.’s request for a meeting with the applicant, on the grounds that the latter had waived his right to legal assistance. The investigator informed the lawyer that he would ask the applicant whether he had changed his mind about having legal representation.
19. On 24 September 2002 the applicant once again waived his right to legal assistance, stating that he refused the services of lawyers, including those of M. The investigator passed this on to M., who complained to the Kyiv City Prosecutor’s Office and to the Prosecutor General’s Office that the investigator had overstepped his competence and that the applicant’s right to legal assistance had been violated.
20. As alleged by the applicant, on an unspecified date the investigator suggested a lawyer for him who had unsuccessfully solicited a bribe from the applicant’s parents in exchange for having their son declared insane.
21. On 24 September 2002 the applicant had a meeting with his parents and complained to them that he had been ill-treated by the police.
22. On 26 September 2002 he underwent a forensic psychiatric examination, with a view to establishing whether he could be held criminally liable for his actions. He stated to the experts that he did not remember the murder, but did recall that Ms D. had been rude to him and that they had had a fight. He claimed that he could not remember any further details.
23. On 27 September 2002 the applicant stated that he wished to be represented by M., who was admitted in the proceedings the following day.
24. On 20 October 2002 the applicant retracted his earlier confessions as having been given under duress, and changed his plea to not guilty. According to his new account of the events of 28 August 2002, he had not seen Ms D. after she had left under the pretext of the need to buy some bread. Having waited for her in vain for about an hour, he had returned home at about 11 p.m.
25. On 7 November 2002 the Kyiv City Prosecutor’s Office wrote a letter to Mr M. in response to his complaint about the alleged violation of the applicant’s right to legal assistance. The letter stated that on 6 and 10 September 2002 the investigator had informed the applicant of his right to have legal representation; however, the applicant had voluntarily waived that right and had signed forms to that effect. As soon as he changed his mind, his request for legal representation was allowed.
26. On 14 November 2002 the applicant was indicted on a charge of premeditated murder and committed for trial.
27. On 7 July 2003 the Kyiv Svyatoshynskyy District Court (“the Svyatoshynskyy Court”) found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment. The court mainly based its verdict on the applicant’s confession statements made during his initial police questioning. Among the witnesses examined by the court was Sh., who had known the victim for about three months before her death. In giving evidence, Sh. stated that he had met up with her on 28 August 2002 and they had had sexual intercourse after she had left the applicant under the pretext that she was going to buy some bread. As to the applicant’s allegation of ill-treatment, the court heard evidence from several police officers who denied any coercion. It also referred to the forensic medical examination report of 7 September 2002, which stated that no injuries to the applicant’s body had been discovered or complained of. Lastly, the court noted that the applicant had not raised that complaint even after he had started to be legally represented.
28. The applicant’s lawyer appealed, submitting that the verdict had been based solely on the applicant’s confessions given under duress and in the absence of a lawyer. The appeal also stated that the trial court had failed to give any consideration to the fact that the witness Sh. had been detained for about two weeks and had also been questioned as a suspect.
29. On 3 March 2004 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the above judgment and remitted the case to the same first-instance court for a fresh examination on the basis that one of the judges had started a hearing in a different case while the panel had been supposed to be in the deliberations room preparing its verdict in respect of the applicant. Accordingly, the secrecy of the deliberations had been breached. The appellate court also held that the applicant’s allegation of ill-treatment had not been duly investigated.
30. On 6 April 2004 the Svyatoshynskyy Court instructed the Svyatoshynskyy District Prosecutor’s Office (“the Svyatoshynskyy Prosecutor’s Office”) to investigate the applicant’s allegation of illtreatment.
31. On 16 April 2004 the Svyatoshynskyy Prosecutor’s Office delivered a ruling refusing to open a criminal case against the investigator and the two police officers involved in the applicant’s detention and questioning for lack of corpus delicti in their actions. The prosecutor relied, in particular, on the statements of the officers in question and on the applicant’s forensic medical examination of 7 September 2002. The ruling also stated that the applicant’s initial statements had contained such factual details that could only be known to him and could not have possibly been dictated to him by the investigator. Lastly, the prosecutor noted that the applicant had not raised any complaints of ill-treatment even after having been legally represented. Accordingly, his later complaints in that regard were considered as being a part of his attempts to escape liability.
32. On 21 May 2004 the applicant’s mother requested the Svyatoshynskyy Prosecutor’s Office to return the applicant’s clothes seized on the day of his arrest.
33. On 24 May 2004 the Svyatoshynskyy Court delivered another judgment in which it again found the applicant guilty of premeditated murder, but reduced the sentence to twelve years. It relied on the applicant’s confession, having found that it had been given in full freedom because, firstly, there were written waivers by the applicant of his right to legal assistance, and, secondly, because his allegation of ill-treatment was considered to be unsubstantiated. The court noted that the applicant had not complained of any ill-treatment by the police during the pre-trial investigation. It dismissed as untruthful the statement of the applicant’s acquaintance, who when questioned as a witness alleged having seen the applicant at the police station in the evening on 6 September 2002 wearing torn and blood-stained sportswear. The court also relied on the statements of other witnesses who, in particular, had seen the applicant waiting for Ms D. on the evening on 28 August 2002. Furthermore, the court relied on the findings of a forensic cytological expert examination, which suggested that the antigens found under his nails could have belonged to the victim. The Svyatoshynskyy Court referred to the following circumstances warranting a reduction of the applicant’s sentence: the fact that he had pleaded guilty, was remorseful and had actively assisted the police in the initial stages of the investigation, and the fact that he had a minor child and had been in gainful employment before his detention.
34. The applicant appealed against the above judgment, reiterating his earlier arguments and also contending that criminal procedure law provided that legal representation should have been afforded to him as from his very first questioning by the police, as he was Russian-speaking and did not have a good command of Ukrainian. In support of the allegation of police illtreatment, he pointed out that SIZO no. 13 had refused to accept him as a detainee several times on account of his injuries. The applicant also alleged that the police had concealed the fact that they had withheld the clothes in which he had been arrested and questioned and which bore traces of his ill-treatment.
35. On 3 June 2004 the Svyatoshynskyy Prosecutor’s Office informed the applicant’s mother, in reply to her request of 21 May 2004 (see paragraph 32 above), that there was no information in the investigation file about any clothes having being seized and that no such clothes were among the material evidence in the case.
36. On 15 September 2004 the Court of Appeal further mitigated the applicant’s sentence to ten years’ imprisonment, having taken into account the provocative behaviour of the victim and the fact that the applicant had a minor child to take care of. The appellate court ruled so in partially allowing the applicant’s appeal. At the same time, it regarded his allegations of ill-treatment in police custody and of coercion into self-incrimination as unsubstantiated. It held that no facts in support of that allegation had been established and that there was no documentary evidence to prove that the applicant had sustained any injuries. Lastly, the court noted that the applicant had never raised the issue of his insufficient command of Ukrainian during the pre-trial investigation.
37. On 13 January 2005 the Supreme Court rejected the applicant’s cassation appeal as unsubstantiated, having found that the grievances submitted therein had already been duly examined by the lower-level courts.
38. On 22 April 2005 the applicant’s mother complained to the Kyiv City Prosecutor’s Office that her son had been ill-treated. She also maintained that he had been convicted of a crime which he had not committed.
39. On 13 May 2005 the Donetsk Scientific Research Institute of Forensic Expert Examinations, on the instruction of the prosecutor, analysed the video-recording of the applicant’s police questioning and the reconstruction of events of 6 and 7 September 2002 respectively, with a view to establishing whether the applicant could be regarded as having been subjected to psychological pressure. The forensic psychologist concluded that no such pressure had been put on the applicant, who had been making his statements freely. The applicant’s behaviour and way of speaking suggested that his self-incriminating statements had been voluntary and truthful.
40. On 1 June 2005 the Kyiv City Prosecutor’s Office issued a decision refusing to open a criminal case in respect of the loss of the applicant’s clothes. It was established that the police had indeed withheld the clothes in which he had been arrested, as they had been required for a forensic examination. The loss of the clothes, although having caused some pecuniary damage to the applicant, could not be regarded as proof that he had been ill-treated. Furthermore, the pecuniary damage was not so considerable as to warrant a criminal investigation.
41. On the same date the Deputy Kyiv City Prosecutor delivered a report summarising the findings of the investigation into the applicant’s allegations of ill-treatment and the loss of his clothes, which had been verified and dismissed as inaccurate. The prosecutor referred, in particular, to the forensic medical examination of 7 September 2002 which found no injuries to the applicant’s body, and the forensic psychological examination of 13 May 2005 which gave no indication that any psychological pressure had been put on him. The applicant’s submissions that he had been refused admission to the SIZO on two occasions had been verified and dismissed as untrue. The prosecutor consulted the relevant documentation of the SIZO and questioned its medical staff, who reported that the applicant had arrived there on 13 September 2002 and had undergone extensive medical examinations the same day (see paragraphs 11, 15-16 and 39 above).
42. On 3 February 2006 the Kyiv Pecherskyy District Court upheld the prosecutor’s decision of 1 June 2005 stating that the loss of the applicant’s clothes by the police was not proof that a criminal offence had been committed.
43. On 15 June 2006 the Court of Appeal quashed the decisions of the prosecutor and first-instance court and remitted the case for additional investigation. As noted in its ruling, the applicant alleged that the loss of the clothes in question had caused damage to him far more serious than the money they cost. Namely, he argued that, because of this loss, he was not able to prove that he had suffered ill-treatment in the hands of the police. This argument had not however been duly examined.
44. On 9 August 2006 the Kyiv City Prosecutor’s Office issued another decision refusing to institute a criminal investigation into the applicant’s complaints, having found them unsubstantiated.
45. The prosecutor informed the applicant and his relatives, on several occasions, in reply to their repeated complaints about his alleged ill-treatment, that they could challenge the decision of 9 August 2006 before the higher-level prosecution authorities or the courts. It appears that no further complaints were lodged.
46. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment on the case of Shabelnik v. Ukraine (no. 16404/03, § 25, 19 February 2009).
47. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment in the case of Spinov v. Ukraine (no. 34331/03, § 33, 27 November 2008).
48. A summary of relevant documents of the Council of Europe can be found in the judgment of Salduz v. Turkey ([GC] no. 36391/02, §§ 37-38, 27 November 2008).