ITEMID: 001-80386
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KAR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation f Art. 10
TEXT: 5. The applicants were born in 1972, 1969, 1969 and 1968 respectively and live in Turkey. Between 20 March 1997 and 8 April 1997 they took part in a play, entitled “An Enemy of Justice” (Bir Hak Düşmanı), as actors. The play was staged on eight occasions in a number of towns and cities in Turkey.
6. A number of newspapers and TV stations devoted coverage to the play and several provisions of the Criminal Code, which the applicants were supposed to have breached, were cited in some of those newspapers. On 20 April 1997 the daily Hürriyet newspaper ran the headline “The play that led the general to rebel”, referring to an army general having severely criticised the ruling Refah Party and its leader Necmettin Erbakan because of the play staged by the applicants.
7. On 24 April 1997 the first, third and fourth applicants were arrested by police officers from the anti-terror Branch of the İzmir police headquarters and placed in custody. The second applicant was arrested and detained the following day. The reason for their arrest was a criminal investigation opened by the prosecutor at the Ankara State Security Court in connection with the play. The applicants did not have access to their lawyers while in police custody.
8. On 1 May 1997 the applicants appeared before the judge at the State Security Court in Ankara. According to the verbatim records of this meeting, the applicants were accused of the offence of “incitement of the public to an armed uprising against the armed forces”, contrary to Article 149 § 1 of the Criminal Code in force at the time.
9. The applicants all stated that there was nothing in the play which could be interpreted as an incitement to an uprising. Nevertheless, the judge ordered their detention on remand, pending the introduction of criminal proceedings.
10. On 26 May 1997 the prosecutor at the Ankara State Security Court filed an indictment with that court and charged the applicants and 35 other persons with the above mentioned offence. One of the 35 persons is the playwright. The other 34 people had assisted in the staging of the play in various cities in one way or another.
11. According to the indictment, the play was based on the perception that there was a risk of an attack, in the form of a military coup, against Muslims. In one part of the play, a number of Muslims are gathered and discuss possible ways of avoiding that risk. One person suggests that Muslims should establish an armed force as a deterrent, regardless of the existence or otherwise of the risk of a military coup. At the end of the play a military coup takes place and the leader of the Muslims is sentenced to death.
12. Criminal proceedings commenced before the First Chamber of the Ankara State Security Court (hereinafter “the trial court”) while the applicants were being held in detention pending the outcome. One of the three judges on the bench of the trial court was a military officer. In their defence petitions submitted to the trial court, the applicants stated, inter alia, that the play was set in an imaginary country called “Zargonya” and had nothing to do with Turkey; the dialogue in the play constituted “artistic events”. The play included a number of expressions and opinions, but it was not possible to regard them as incitement to armed rebellion.
13. During the criminal proceedings, the prosecutor requested the trial court to convict the applicants of the offence of “incitement to hatred or hostility on the basis of a distinction between social classes, race, religion, denominations or region”, contrary to Article 312 § 2 of the Criminal Code then in force, and not for the offence mentioned in the indictment.
14. On 11 September 1997 the trial court found the applicants guilty of the offence under Article 312 § 2 of the Criminal Code and sentenced them to two years and four months’ imprisonment and the payment of a fine. The playwright was sentenced to three years’ imprisonment. The other 34 defendants were acquitted.
15. The applicants appealed against the judgment and argued that the mental element (mens rea) of the offence was lacking; the words uttered by them as actors should be regarded as “artistic events”.
16. The prosecutor also appealed against the judgment and argued that the applicants had staged the play at various locations and, as such, they should have been convicted and sentenced separately in respect of each occasion.
17. On 23 March 1998 the Court of Cassation quashed the judgment in so far as it concerned the applicants and the playwright, and upheld the acquittal of the other 34 defendants. The Court of Cassation, in line with the prosecutor’s submissions, held that the applicants had staged the play at various locations and, therefore, they should have been convicted and sentenced in respect of each occasion.
18. Following the decision of the Court of Cassation, the case was referred back to the trial court and the criminal proceeding against the applicants recommenced. In their observations submitted to the trial court, the applicants argued that the play staged in the eight locations had been based on the same script. They could not, therefore, be regarded as multiple offences.
19. On 4 August 1998 the trial court convicted the applicants once more of the offence under Article 312 § 2 of the Criminal Code and sentenced them to two years’ imprisonment for each time the offence had been committed, i.e. 16 years, and the payment of a fine. In assessing the sentence, the trial court considered as aggravating factors “the time and the locations where the plays were staged, the identities and personalities of the applicants and their social status”.
20. The applicants appealed and argued that they were students and young amateur actors who were not well known. The play had been staged in theatres with an audience of approximately 150-200 persons. Due to the fact that the staging of the play in different locations was regarded both as an aggravating element as well as a separate offence, they were being punished multiple times. The applicants also submitted that, although they had staged the play a total of eight times, in three of the locations they had staged the play twice in one day, which, they argued, should count as one offence only.
21. On 22 February 1999 the Court of Cassation quashed the judgment and held that the staging of the play on the same day on more than one occasion should have been regarded as one offence for the purpose of sentencing.
22. On 13 May 1999 the trial court again convicted the applicants of the offence defined in Article 312 § 2 of the Criminal Code and sentenced each applicant to five years and six months’ imprisonment as well as to the payment of 4,729,999 lira fine (approximately 12 US dollars at the time). Taking into account the time the applicants had already spent in prison, i.e. 2 years and 18 days in the case of the second applicant and 2 years and 19 days in the case of the remaining applicants (see paragraph 7 above), the trial court ordered their release. The playwright was sentenced to 11 years’ imprisonment for having written the script.
23. Parts of the script that were reproduced in the trial court’s judgment, included the following:
“– So, what else did Allah mention in his book, did he mention taking up arms and rebelling against the State?
– If that State does not rule by the rules of Allah and instead adopts laws as it wishes, enforces those laws against its citizens in order to force them to obey, resorts to the use of arms when they refuse to obey, then yes, just like the State behaves.”
24. According to the trial court, the play had given a message to Muslims about a perceived need for the public to take up arms against the armed forces of the State. By mentioning the possibility of a military coup, the military had been portrayed as an oppressive group. Members of the armed forces were referred to as non-religious persons or as persons affiliated to other religions. A need by real Muslims to take up arms against such members of the armed forces had thus been depicted in the play. This, in the opinion of the trial court, amounted to incitement to hatred and enmity on the basis of a distinction based on class, race and religion, within the meaning of Article 312 § 2 of the Criminal Code.
25. The appeal lodged by the applicants was rejected by the Court of Cassation on 11 October 1999.
26. A full description of the relevant domestic law may be found in Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, §§ 21-33.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79259
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: WELLS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza;Simon Brown
TEXT: The applicant, Mr Jesse Wells, is a British national who was born in 1966 and lives in Marsh Village, Buckinghamshire. He was represented before the Court by Mr J. Browne, a solicitor practising in Chesham.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, his wife and five children, are gypsies. He bought land known as Ashbrook Farm and moved onto it with three caravans on 10 April 2002. Prior to that date, they had lived in caravans at Stables Farm, an established gypsy caravan site located some 1.2. kilometres to the south of his land.
On 26 April 2002, Wycombe District Council (“the Council”) served an enforcement notice requiring him to remove the caravans and cease using the land, which had been used for agricultural purposes, as a caravan site.
The applicant appealed.
By decision dated 18 December 2002, following a hearing and inspection of the site, the Inspector appointed by the Secretary of State dismissed the applicant’s appeal. He found that the development was prominent and harmed the rural character of the surroundings. He noted that there was a general shortfall of sites for gypsies in the county but that there were two other privately owned sites in the vicinity, one owned by the applicant’s father (Stables Farm) and the other by his brother, where stationing of caravans had been allowed and he considered that the possibilities of reorganising or extending the residential parts of these sites had not been fully explored. In particular, permission had been granted for a replacement dwelling on Stables Farm and when his parents moved into that house more space would become available. In the circumstances therefore the applicant’s need for an additional site at Ashbrook Farm had not been made out. The Inspector did not find the enforcement disproportionate as regarded Article 8 but gave one year to comply with the condition of ceasing occupation and removal of the caravans to allow the applicant to explore other options.
The applicant did not appeal against this decision to the High Court.
On 25 March 2004, the Council laid an information against the applicant which alleged that he had failed to comply with an enforcement notice.
On 28 September 2004, the applicant was tried by the Central Buckinghamshire Magistrates’ Court. They dismissed the information finding the applicant not guilty as he “had done all that he could reasonably be expected to do to find suitable accommodation” for the purposes of the statutory defence under section 179(3) of the Town and Country Planning Act 1990.
The Council appealed against that decision by way of case stated having requested that the magistrates pose the following question for the opinion of the High Court:
“whether in light of the evidence the steps that the Justices found the <applicant> had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under section 179(3) of the Town and Country Planning Act 1990.”
The case stated recorded the following findings of fact by the magistrates:
...
f) The [applicant] continued to reside at Ashbrook Farm.
g) The [applicant] previously resided at a site belonging to his father. Due to family difficulties he and his family had to leave that site. He was unable to return.
h) The [applicant’s] children attend school locally. It is in their best interests to remain at their respective schools.
i) The [applicant] made approaches to local farmers to buy land, confirmed in letters of June and September 2004, and was unsuccessful. The [applicant] made enquiries of, and has registered with, local property consultants. These enquiries as to available local land also proved unsuccessful.
j) There is a shortfall of gypsy accommodation in the Wycombe area and consequently other alternative local sites were not available. The [applicant] did not look for any gypsy accommodation outside the Buckinghamshire area.
k) The [applicant] approached the [Council’s] housing department for alternative accommodation before purchasing Ashbrook Farm. As he is the owner of a mobile home he was not deemed to be homeless and therefore none was available.
l) The [applicant] was willing to change his culture and consider living in a house with his family.
m) The sale of the [applicant’s] mobile home would have rendered him intentionally homeless and local authority accommodation would not have been available. He was advised by the [Council] to go to letting agents.
n) The sale of the [applicant’s] mobile home would have realised him sufficient funds to enable him to rent accommodation but only for a short period and therefore he did not go to any letting agents or attempt to obtain rental accommodation. Once the funds realised were used the [applicant] the applicant would not be able to maintain rental payments.
o) The sale of the mobile home would have realised in the region of £10,000.
p) The [applicant] was in work.
On 23 May 2005 Mr Justice Newman allowed the Council’s appeal and remitted the case to the magistrates with a direction that they convict the applicant of the offence. He noted the findings of fact by the magistrates but found that the magistrates’ application of the defence under section 179(3) was flawed:
“A defence under section 179(3) is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site had become available, where the activity in question could be continued. On that basis, a whole range of activities, which take place contrary to planning control, and are commonly enforced against, could continue simply because nowhere else was available for them to be carried on. For example, the use of land for the whole range of industrial and commercial activities to which land can be put, could be continued, despite the service of an enforcement notice, so long as the owner or user demonstrated that an alternative site, where the activity could continue, had not become available. The enforcement procedures, essential to proper planning control, would be wholly undermined.
It can also be seen that the magistrates placed some weight upon an approach to the [Council’s] housing authority before he purchased Ashbrook Farm. It is not clear why the position prior to ownership of Ashbrook Farm was relevant but it seems likely the magistrates concluded that the [applicant’s] ownership of a mobile home meant that he would not be regarded as "homeless". The service of an enforcement notice requiring the [applicant] and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family (including the [applicant]) for the provision of housing accommodation provided by the local authority to be considered by the housing department of the [Council]. There had been no application to the housing authority by the [applicant] and his family after the service of the enforcement notice. Had the magistrates realised the true position I doubt that they would have come to the conclusion that the [applicant] had done everything reasonably possible to find alternative accommodation. In the course of argument on the appeal and in response to the court, counsel for the [Council] accepted that the position of the [applicant] and his family arising from their need to comply with the enforcement notice, meant that the issue was fit to be taken up by the housing department... as soon as any application was made to it.”
He referred also to previous cases on the section 179(3), noting that it had been held in Brockham (Kent County Council v. Brockham 1996 1 PLR):
“that personal circumstances were admissible to establish incapacity, not that personal circumstances were admissible to establish an excuse or explanation for non-compliance or that compliance would give rise to particular hardship. It is clear the court was holding that for a defence to be made out, it must be established that, despite doing everything that could be reasonably expected, the defendant was nevertheless incapable of complying with the notice. Simon Brown LJ ... foresaw the risk that arguments on the basis of impecuniosity could lead to magistrates upholding defences, which were outside the contemplation and true meaning of the statutory defence... In my judgment Brockman provides no support for the factual conclusion reached by the magistrates in this case being treated as a defence. The <applicant> was not incapable of leaving the site. Whether or not he had an alternative site to go to, he was physically able to leave the site with his family. Further, as to his financial circumstances, although in selling the mobile home, he might only be able to provide himself with a home for a limited period of time, estimated at ten months, the hardship that that created for himself and his family did not establish that he was incapacitated by any “impecuniosity”. His “impecuniosity” did not prevent him from leaving the site, but plainly the requirement for them to go was capable of creating a measure of hardship. It has to be said, in light of their homelessness and the statutory duty upon housing authorities, it is likely to be substantially less than the magistrates had in mind...
For these reasons...I am satisfied that the magistrates erred and that this appeal must be allowed.”
Mr Justice Newman refused to certify the case as involving a point of law of general public importance for the purpose of further appeal to the House of Lords.
In July 2005 the applicant was convicted by the magistrates and fined GBP 1,500 and ordered to pay costs.
Meanwhile, on 21 June 2005, the applicant was granted by an inspector on appeal planning permission subject to conditions to change the use of the site to a gypsy caravan site for one family occupying no more than three caravans. The applicant and his family remain on the site on the authority of that permission.
Section 179(3) of the Town and Country Planning Act 1990 provides:
“In proceedings against any person for an offence under section (2) <failure to comply with an enforcement notice>, it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.”
Previous cases concerning the application of his defence include the following.
In Kent County Council v. Brockman [1996] 1 PLR 1, the High Court (Divisional Court) refused the prosecuting authority’s appeal by way of case stated from a magistrates court’s decision to acquit the defendant on the basis of the defence. Buckley J held that the magistrates were correct in taking the individual’s personal circumstances into account and that where the individual was genuinely incapacitated, he did not have to show that he done something to try to comply with the enforcement notice. In that case the fact that the applicant was incapacitated physically by reason of a heart attack and was aged 65 living alone, could not do the work himself or pay for it, was sufficient to make out the defence. It was emphasised that magistrates should be fairly rigorous an proof of incapacity.
In R. v. Beard [1997] 1PLR 64, the Court of Appeal dismissed the applicant gypsy’s appeal against conviction for breach of an enforcement notice in failing to quit the land which he occupied in his caravans. In dismissing the contention that the applicant had done everything he could be expected to comply by searching for alternative accommodation without success, the court found that the alleged facts relied on did not relate to any lack of capacity or inability to comply with the enforcement notice. Lord Justice Hobhouse noted that the system of planning controls, which existed in the interests of the community as a whole, was entrusted to democratically elected local authorities with rights of appeal to ministers accountable to Parliament and aggrieved applicants had rights of recourse to the courts under statute or by way of judicial review, with scope on appeals from planning decisions for public hearings at which parties and interested members of the public were entitled to present their views and evidence. It was at that stage that the fact that the applicant was a gypsy and that there might be special needs of the applicant or other gypsies for camp sites might justify the grant of a planning permission which would be refused in the absence of those special considerations. Against that background, he stated that the meaning of section 179(3) was
“... clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence ... arises. Before a defence can arise... the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done all that he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence... ..
“Sub-section (3) is not concerned with a balance of social factors. It is not concerned with policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin the court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply. Indeed it is not at all concerned with the defendant’s wishes; only with his capacity. It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner. ...
The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including the stage of whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with Article 8. The subject matter of section 179 is failure to comply with a lawful enforcement notice... There is nothing in the present case which requires the appellant to desist from following a nomadic life or abandoning a communal existence with other gypsies.”
In R. v. Wood [2002] JPL 219, the Court of Appeal allowed the appeal of a gypsy against conviction for breach of an enforcement notice requiring him to remove his caravan from his land. It held that the judge had been wrong to rule that there was no defence on the facts to be left to the jury, stating that it was for the jury to decide whether the defendant had done all that he reasonably could to secure compliance with the notice and that while there was little or no merit in the grounds advanced by the applicant (e.g. whether he would be able to convince his family to move even if he left himself), the issue should be determined at a retrial.
In R. v. Clarke [2002] JPL 1372, the Court of Appeal rejected the appeal against conviction of a gypsy who had failed to remove his caravans, finding that the considerations in Beard still applied as they had been endorsed in Wood which had been decided after the Human Rights Act 1998 had come into force. Mr Justice Cooke rejected the contention that the tribunal of fact was entitled to consider before convicting, in addition to whether or not he had done everything reasonable to comply in his personal and financial circumstances, whether the alleged interference with the defendant’s right to respect for his traditional way of life was justified under Article 8 § 2 of the Convention.
“The question of the rights of the applicant, in relation to home and family life, was fully considered at the earlier stage of the planning process, by the decisions of the planning authorities and the two appeals therefrom, when the inspectors decided against the applicants...”


ITEMID: 001-93953
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF JAMROZY v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1956 and lives in Polanica Zdrój.
6. On 27 May 2002 the applicant was arrested by the Central Bureau of Investigation (Centralne Biuro Śledcze) on suspicion of having committed fraud.
7. On 30 May 2002 the Warsaw District Court (Sąd Rejonowy) remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question. It further considered that there was a risk that he would induce the co-accused to give false testimony or obstruct the proper conduct of the proceedings by destroying the documentary evidence relevant to the investigation; at the time of his arrest the applicant was found to be destroying documents which might be important for the further conduct of the proceedings. The court also stressed the likelihood that a heavy penalty would be imposed on him.
8. On 6 June 2002 the applicant appealed unsuccessfully against the detention order. In his further applications for release and appeals he maintained that, given his poor health, detention was putting a severe strain on him.
9. On 13 June 2002 the applicant lodged a motion with the State Prosecutor (Prokurator Krajowy) for the case to be referred to another prosecutor because the prosecutor dealing with his case was not in his view impartial. In his motion the applicant alleged that he had been denied access to his lawyer in breach of his right to defence. On 4 September 2002 the motion was dismissed by the State Prosecutor.
10. On 3 October 2002 the applicant lodged an application with the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) for the detention to be either lifted or replaced by another preventive measure. On 7 December 2002 the application was dismissed.
11. On 21 August 2002 the Warsaw District Court extended the applicant’s detention until 31 October 2002. It repeated the grounds originally given for his detention.
12. On 24 October 2002 the Warsaw Regional Court (Sąd Okręgowy), on appeal by the applicant, upheld the decision of 21 August 2002. It repeated the grounds previously given for the applicant’s detention and referred to the likelihood of a severe sentence of imprisonment being imposed on him.
13. Subsequently, further decisions extending the applicant’s detention were taken by the Warsaw District Court. The relevant decisions were taken on the following dates: 28 October 2002 (extending his detention until 31 December 2002), 30 December 2002 (extending his detention until 28 February 2003), 26 February 2003 (extending his detention until 30 April 2003) and 25 April 2003 (extending his detention until 26 May 2003).
14. On 23 May 2003 the Warsaw Court of Appeal extended the applicant’s detention until 21 June 2003. The court again relied on the reasonable suspicion that the applicant had committed the offence in question and on the severity of the expected penalty. It also mentioned that the continued detention was justified by reasons referred to in Article 263 § 4 of the Code of Criminal Procedure, without however specifying them.
15. The Warsaw District Court further extended the applicant’s detention on the following dates: 16 June 2003 (extending his detention until 20 September 2003), 19 September 2003 (extending his detention until 31 March 2004) and 27 February 2004 (extending his detention until 26 May 2004).
16. In the meantime, on 4 November 2002, the applicant had appealed against the decision of 28 October 2002 extending his pre-trial detention. No ruling was given on the appeal. On 27 February 2003 the Warsaw District Court gave a decision stating that a ruling on that appeal would be purposeless, as the impugned decision had expired on 31 December 2002.
17. On 16 December 2002 the applicant lodged an application with the Prosecutor of Appeal for his detention to be lifted and replaced by bail. The applicant referred to his health problems. On 2 January 2003, the Prosecutor of Appeal dismissed the application, emphasising that the documents submitted in support of the applicant’s request did not constitute sufficient evidence of the alleged negative effect of detention on his health. On 29 January 2003 the State Prosecutor dismissed an appeal by the applicant against the decision of 2 January 2003. On 19 April 2004 the applicant was subjected to a medical examination at his own request. The results of the medical examination did not reveal grounds for release.
18. On 9 June 2003 the applicant was served with a bill of indictment.
19. On 17 August 2004 the Warsaw District Court lifted the applicant’s detention and released him on bail. The court prohibited the applicant from leaving the country and confiscated his passport.
20. On 27 October 2005 the applicant asked for the prohibition on leaving the country to be lifted. On 28 October 2005 the Warsaw District Court dismissed his application.
21. The applicant appealed. On 30 November 2005 the Warsaw District Court dismissed the appeal.
22. The applicant’s further numerous requests for the prohibition on leaving the country to be lifted were unsuccessful. On 22 June 2007 the Warsaw District Court again refused the applicant’s request. The applicant’s lawyer appealed.
23. On 10 October 2007 the Warsaw District Court granted the appeal and lifted the preventive measure in question. The court found that the applicant had not obstructed the proceedings, had not tried to escape and had been always at the disposal of the domestic authorities.
24. The case is pending before the first-instance court.
25. On 18 January 2006 the applicant lodged, under the Law of 17 June 2004 (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), a complaint concerning the length of the examination of his appeal against the decision of 28 October 2002 prolonging his pre-trial detention. He stressed that he had appealed on 4 November 2002. He claimed compensation in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500). The Warsaw District Court refused to entertain the appeal on 27 February 2003.
26. On 28 February 2006 the Warsaw Court of Appeal declined to consider the complaint. It referred to the fact that the complaint concerned proceedings prior to the entry into force of the 2004 Act and that the 2004 Act produced legal effects as from the date of its entry into force.
27. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) is set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
28. The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials including the 2007 Resolution of the Committee of Ministers can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-108690
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF STANEV v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 6 - Right to a fair trial (Article 6-1 - Access to court;Civil rights and obligations);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account.
10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court (Окръжен съд) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank.
11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal (Апелативен съд) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian.
12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002.
13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled.
14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement.
15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this.
16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time.
17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian.
18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question.
19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away.
20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission.
21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed.
22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them.
23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically.
24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions.
25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant.
26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management.
27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation.
28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home.
29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available.
30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him.
31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist.
32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years.
33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end.
34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” (социална оценка) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10).
35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society.
36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions.
37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home.
38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation.
39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live.
40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final.
41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused.
42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship (настойничество), whereas those who are partially incapacitated are placed under partial guardianship (попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid.
43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173).
44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian.
45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.).
46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her.
47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests.
48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian.
49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so.
50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative.
51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows:
“The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed.
Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).”
52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.).
53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void.
54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008).
55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken.
56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed.
57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)).
58. By virtue of the implementing regulations for the Social Assistance Act 1998 (Правилник за прилагане на Закона за социално подпомагане), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty.
59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services (Наредба № 4 за условията и реда за извършване на социални услуги), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances.
60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973.
61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008).
62. The State and Municipalities Responsibility for Damage Act 1988 (Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis.
63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties.
64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.).
65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes.
66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.).
67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.).
68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)).
69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)).
70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves.
71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending.
72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide:
“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”
“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
73. The relevant parts of this Recommendation read as follows.
“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.
...
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”
“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.
...”
“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.”
“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”
“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.
...
3. There should be adequate rights of appeal.”
74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home.
75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon.
76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated.
77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated.
78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available.
79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets.
80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses.
81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives.
82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions.
83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report).
84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report).
85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report).
86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report).
87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010.
88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure.
89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian.
90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland.
91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge.
92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems.
93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent.
94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement.
95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will.
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-4
5-5
6-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-77247
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GRASSER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 8. The applicant was born in 1940 and lives in Nonnweiler, Germany.
9. In 1971, the applicant and a company engaged in negotiations with the city of Saarbrücken to obtain a building permit for a plot of land they had bought. In the course of these negotiations, the applicant and the said company undertook to pay 2,535,000 Deutschmarks (DEM) (approximately 1,296,000 Euros (EUR)) of the costs for the provision of the public infrastructure (Erschließung). The applicant also undertook to construct a shopping centre within two years following the grant of the building permit.
10. On 1 April 1974 the applicant applied for the building permit with the municipal authorities. He offered to submit a bank security to cover the costs for the provision of the public infrastructure concerning the shopping centre, estimated to amount to some DEM 1,500,000. He also suggested that a contract on this point be signed by him and the city.
11. In August 1974, following municipal elections, the city requested the applicant to submit a bank security of DEM 4,500,000 (approximately EUR 2,300,813) to cover the costs for the provision of the public infrastructure for the plot of land as a whole. Upon his refusal to do this, the city refused its consent to his request for a building permit. It also refused to conclude a contract concerning the construction of the shopping centre and the costs for the provision of the public infrastructure.
12. On 23 August 1974 the applicant brought an official liability action (Amtshaftungsklage) for compensation in the Saarbrücken Regional Court against the city of Saarbrücken. He complained that the city's sudden decision to request a bank security of DEM 4,500,000, thereby setting up further inequitable conditions for its agreement to the applicant's building project, was a result of informal negotiations between different local political parties before the municipal elections. It constituted a voluntary breach of the principle of continuity in administrative actions.
13. On 24 February 1975 the local building authorities refused to grant the applicant the requested building permit. This decision was later confirmed by the administrative courts.
14. On 21 March 1975 the Saarbrücken Regional Court dismissed the applicant's official liability action. According to the Regional Court, nothing suggested that the city of Saarbrücken had acted in breach of its obligations as a public organ.
15. On 27 June 1975 the applicant lodged an appeal against this decision with the Saarbrücken Court of Appeal (Fourth Senate).
16. In autumn 1976 the applicant's real estate concerned was sold by compulsory auction.
17. On 3 February 1978 the Saarbrücken Court of Appeal (Fourth Senate) dismissed the applicant's appeal as ill-founded.
18. On 7 February 1980, following the applicant's appeal on points of law, the Federal Court of Justice quashed this decision and remitted the case to the Court of Appeal (Fourth Senate). It requested the Court of Appeal to examine whether the city had discontinued abruptly the contractual negotiations with the applicant for arbitrary reasons, because the city was liable to pay damages to the applicant if it had done so.
19. On 23 October 1981 the Saarbrücken Court of Appeal (Fourth Senate) again dismissed the applicant's appeal. It found that, even assuming that the city had breached its duty as a public organ to act in a consistent manner, the applicant had failed to establish that there was a causal link between the city's conduct and the damage sustained by him.
20. On 14 October 1982 the Federal Court of Justice decided partly to admit the applicant's renewed appeal on points of law.
21. On 5 May 1983 the Federal Court of Justice partly quashed the Court of Appeal's decision and remitted the case to the Seventh Senate of that court. It found that the Court of Appeal, in its finding that a causal link was missing between the city's conduct and the damage sustained by the applicant, erroneously did not assess the evidence offered by him.
22. On 10 July 1984 the Saarbrücken Court of Appeal (Seventh Senate) amended the Regional Court's decision of 21 March 1975. It declared that the applicant was entitled to compensation, but did not yet assess the exact amount of the damages payable (Grundurteil). The Court of Appeal found that the city of Saarbrücken had unforeseeably and without legitimate reasons requested the applicant to submit a bank security of DEM 4,500,000, thereby willingly causing the breakdown of the negotiations about the grant of a building permit. Therefore, it breached its duty as a public organ to act in a consistent manner.
23. On 11 July 1985 the Federal Court of Justice refused to admit the appeal on points of law lodged by the city of Saarbrücken.
24. On 19 December 1985 the Federal Constitutional Court refused to admit the city's constitutional complaint.
25. On 8 July 1986 the Saarbrücken Court of Appeal ordered the city of Saarbrücken to pay DEM 5,798,142 (approximately EUR 2.964.543) plus interest to the applicant and dismissed the remainder of his claim.
26. On 22 June 1989, following both parties' appeals on points of law, the Federal Court of Justice quashed the Court of Appeal's decision as far as the amount of damages was concerned and remitted the case to the Court of Appeal.
27. On 9 January 1995 the Court of Appeal (renamed Saarland Court of Appeal) ordered that an expert report be prepared on the amount of damages sustained by the applicant.
28. On 12 January 1999 the Court of Appeal ordered that a further expert report be prepared on the amount of damages sustained by the applicant, taking into consideration additional tax-related aspects.
29. On 20 July 2000 the Federal Constitutional Court allowed the applicant's constitutional complaint about the length of the official liability proceedings (see in detail paragraphs 36-37 below).
30. On 25 and 26 September 2000, two different Senates of the Court of Appeal rejected the applicant's challenges of the judges of the Court of Appeal on grounds of bias as ill-founded.
31. On 20 November 2001 the Saarland Court of Appeal (Seventh Senate), after having held a hearing, dismissed the applicant's action for compensation. It found that it was not established that the applicant would have been in a financial position to realise his building project if he had been granted the building permit, regardless of the city's behaviour. The city's actions thus had not caused any financial losses to him. The court ordered the applicant to pay the costs of the court proceedings (amounting to some EUR 2,512,222).
32. On 24 April 2003 the Federal Court of Justice refused to admit the applicant's appeal on points of law against the Saarland Court of Appeal's judgment of 20 November 2001. It fixed the value in dispute (Streitwert) at some EUR 109,000,000 and ordered the applicant, being the party failing in his action, to bear the costs of the proceedings (amounting to another approximately EUR 657,322).
33. On 28 May 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming that his property rights, his rights to be heard, to a fair trial and to a decision by the judge having jurisdiction (gesetzlicher Richter) had been violated.
34. On 28 July 2003 (decision served on 4 August 2003) the Federal Constitutional Court refused to admit the applicant's constitutional complaint. It found that he failed sufficiently to substantiate his complaint, which therefore was inadmissible.
35. On 24 February 2004 the Saarbrücken District Court decided to start insolvency proceedings against the applicant.
36. On 24 February 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court, arguing that his right to a hearing within a reasonable time had been violated in the official liability proceedings pending in the Saarland Court of Appeal.
37. On 20 July 2000 the Federal Constitutional Court held that the applicant's right to an effective judicial remedy under the Basic Law had been violated in that the Saarland Court of Appeal did not render a decision on the amount of compensation to be granted to the applicant within a reasonable time. In its reasoning, it found that, despite the complexity of the case, the length of the proceedings, which had been pending since 1974, was obviously excessive. It concluded that, pursuant to Section 95 para. 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), it was restricted to the finding of a violation of the Basic Law. The Court of Appeal was now obliged to take effective measures in order to terminate the proceedings as soon as possible.
38. On 24 April 2001 the applicant brought another official liability action under Article 34 of the Basic Law taken in conjunction with Section 839 of the Civil Code against the Land Saarland with the Karlsruhe Regional Court. He applied for a declaration (Feststellungsklage) that the Land Saarland was liable to compensate him for the damage which has been and will be caused by the excessive length of the proceedings before the Saarland Court of Appeal.
39. On 9 November 2001 the Karlsruhe Regional Court allowed the applicant's action and ordered the defendant Land to pay the costs of the proceedings.
40. On 20 December 2001 the Land Saarland lodged an appeal against the judgment of the Karlsruhe Regional Court of 9 November 2001 with the Karlsruhe Court of Appeal. The proceedings, which had been suspended on the motion of both parties awaiting the outcome of the official liability proceedings against the city of Saarbrücken, are to date still pending.
41. A detailed survey of the relevant provisions of the Federal Constitutional Court Act, the provisions governing State liability and the case-law of the domestic courts concerning the length of civil proceedings can be found in the Court's judgment in the case of Sürmeli v. Germany ([GC], no. 75529/01, §§ 62-74, 8 June 2006).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1