ITEMID: 001-23359
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: WITHEY v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, David George Withey, was a United Kingdom national. He was born in 1959 and he lived in Devon. He died in early 2001. His widow, Susan Withey, continues the application on his behalf.
The facts of the case, as submitted by the parties, may be summarised as follows.
Further to a detailed statement given to the police on 4 August 1992 by Ms E, on 6 August 1992 the applicant was arrested on suspicion of indecent assault of two young children, one of whom was his daughter. He denied the offences to the police. He was remanded in custody for four weeks after which he was granted bail. His bail conditions forbade him to contact Ms E or her children. Ms E made a further detailed statement on 28 August 1992.
On 25 November 1992 the applicant sent Ms E a Christmas card which read as follows:
“To [Ms E and her son], God bless you both. May this Christmas be as happy as mine and my wife’s children. May it reflect all the harm you have done to a family that loved one another and still do. Perhaps in the end you will remember all the good that was done for you; for befriending you was the worst thing we have ever done, but thank you, for they know not what they do. I forgive you, and may God have mercy on you for all your days long. May you wake up thinking how you have destroyed a family. May your days be in torment until you say the truth. Rosie, you need God in your life. Don’t doubt, believe; remember everything is possible to those who believe. I forgive you.”
The card was signed “David” and its post-script read “Have a nice Christmas”.
Ms E made a witness statement dated 11 January 1993. She described how she had received the card and, after great consideration, had decided not to give evidence.
The case came on for trial before the Crown Court on 15 January 1993 and the applicant pleaded not guilty. The applicant claims that Ms E did not attend as she knew her statement was untrue.
Ms E made another statement dated 18 January 1993 which read as follows:
“I have previously stated that I had decided that I didn’t want to give evidence against [the applicant]. The reasons for this are that before I received the Christmas card from him, I was prepared to give evidence although I was aware that it would be an unpleasant experience. When I read the Christmas card I felt sick and started to shake. I could not bear to be in the same house, and within half an hour of receiving it, I had posted it to [the Child Protection Team]. I thought he was trying to get round me; one minute he seemed to be pleasant, and then he was sounding terrible. After I sent the card off, I blocked it out of my mind as I had no idea when the court case would be. I had a visit from [a police officer] to see if I was capable of giving evidence ... I am petrified of [the applicant] and very concerned about any reprisals from him. I don’t think I could bear to be in the same room as him. It is for these reasons only that I have decided not to give evidence. Everything I have previously stated to the police regarding [the applicant’s] actions is the truth.”
On 19 January 1993, when the case was re-listed for trial, counsel for the prosecution explained Ms E’s position. The trial judge, without opposition from the applicant’s counsel, ordered as follows:
“David George Withey, I direct that this indictment lie on the file marked in this way: that it not be proceeded with without leave of this court or the Court of Appeal ... Let me warn you in the clearest possible terms that there is every likelihood of this court granting leave to resurrect this case if there is any repetition of the alleged events contained on that indictment. Do you understand?”
The defendant replied that he did and the trial judge went on:
“I direct this file, together with the latest statement of Ms E to be placed before the [prosecutor] for further consideration as to whether or not an offence is disclosed on the face of it, and whether as a consequence, you should be prosecuted therefor.”
In or around April 1993 the applicant wrote to the trial judge asking him to re-open the case. By letter dated 22 April 1993 the chief clerk informed the applicant that the trial judge had decided not to re-open the case. The trial judge had written on the file:
“I regret that I cannot now reconsider the matter. The defendant was fully and well represented at the time and the matter fully canvassed then. Nothing further will be achieved by resurrecting it.”
In June 1995 the applicant lodged appeal papers with the Court of Appeal. On 4 June 1996 the Court of Appeal office declined to consider his application as there had been no conviction and advised him that, if he wished to have his case re-opened, he should apply to the Crown Court.
On 14 November 1997 the applicant instituted proceedings against Ms E for malicious falsehood as regards her statement of August 1992. He claims that those proceedings were successful.
In January 1998 the applicant wrote to the Crown Court again requesting that the matter be re-opened. On 19 January 1998 the court office responded confirming that a “not guilty” verdict had not been entered in January 1993 and that both counts had been ordered to lie on the file in the usual terms.
By letter dated 8 May 1998 the applicant’s solicitors asked the Crown Prosecution Service (“the prosecution”) about its intentions concerning the charges left on the file. By letter of 22 June 1998 the prosecution confirmed:
“... that there is currently no intention to proceed upon the outstanding matter. I cannot envisage any situation in which this matter would now proceed”.
On 27 July 1998 the prosecution indicated to the Crown Court that, given the applicant’s recent request to have the matter re-listed, it had no objection to a formal verdict of “not guilty” being entered under section 17 of the Criminal Justice Act 1967 and, in the circumstances, asked for the matter to be re-listed for that purpose.
The matter was re-listed for 5 August 1998. Each party was represented by counsel. Having summarised the facts of the case so far, the trial judge noted that the situation had been brought about by the applicant himself since he had intimidated Ms E and since his counsel had consented to the course of action taken on 19 January 1993. Given that conduct and his previous convictions, it was understandable that the prosecution did not wish to offer evidence and that the applicant was satisfied to consent to the matter remaining on the file. The trial judge went on:
“I am conscious that in considering this matter, the court has a discretion whether or not to re-open it, and that such a discretion must be exercised judicially. I am satisfied that this case did not proceed, solely as a result of the acts of [the applicant]. On all the facts before me, and in the exercise of my discretion, I do not propose to give leave to [the applicant] to remove the stay on these proceedings...”
On 2 November 1998 the applicant applied for leave to take judicial review proceedings for an order of certiorari to quash the decision of the Crown Court of 5 August 1998 arguing, inter alia, that the order of 19 January 1993 was wrong in law. Leave was granted in January 1999 and, following a hearing on 11 October 1999, the High Court dismissed the application because it did not have jurisdiction to consider it.
The applicant claims that his three children were placed with foster parents in or around early 1998.
The Crown Court may leave some or all of the counts in an indictment on the file. Counts which are left on the file are marked: “Not to be proceeded with without the leave of the court or the Court of Appeal”. There is a similar practice in the Magistrates’ Court, where the same effect is achieved by adjourning a case sine die. In R. v. Central Criminal Court ex parte Raymond [1986] 83 Cr.App.R. 94, Lord Justice Woolf stated that an order to leave the charges on the file
“... starts off by having the same effect as an order for an adjournment, but an adjournment which it is accepted may never result in a trial ... [the orders] go beyond the ordinary order for an adjournment since they have the effect of not only postponing a trial but, in effect, ordering that there should be no trial without the leave of the court.”
An order that charges be left on the file (“the order”) is often made where an indictment contains several counts and the plea(s) of guilty entered by the defendant to some of these counts are regarded as adequate by the prosecution. The order is made to protect the position of the prosecution in case a defendant convicted in this manner successfully appeals. The intention is that, if there is no successful appeal, the defendant should never stand trial on the counts left on the file. A successful appeal would allow the prosecution to apply to the trial court to pursue the other counts left on the file.
Section 17 of the Criminal Justice Act 1967 (“1967 Act”) provides that the court may enter a verdict of not guilty without a jury being impanelled:
“Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury.”
In R. v. Central Criminal Court ex parte Lord Spens (The Times, 31 December 1992), the prosecution indicated that they would offer no evidence against the accused. Counsel for the accused applied to the judge to enter a verdict of not guilty according to section 17 of the 1967 Act. However, the judge instead made an order to stay the prosecution permanently by ordering that the indictment lie on the file marked “not to be proceeded with”. The case came before the High Court on judicial review and, after ruling that it had jurisdiction to consider the matter, the court found that it was not within the trial judge’s power to order that the indictment lie on the file and that the only course open to the judge was to record a verdict of not guilty either by an order under section 17 of the 1967 Act or by impanelling a jury and directing them to acquit the defendant. Lord Justice Glidewell stated that:
“[...] section 17 [of the Criminal Justice Act 1967] is merely a piece of machinery which enables a judge to enter a verdict of not guilty where the prosecution offer no evidence instead of going through the process of impanelling a jury and requiring them to do so. That section gives the judge no discretion to adopt some other and different course however much he may think it right to do so.”
The 1999 edition of Archbold (reference book on criminal practice and procedure, the edition concerning the relevant time) summarises the effect of that case in the following manner (at paragraph 4-191):
“[An order leaving an indictment on the file] should never be made where the defendant pleads not guilty and the prosecution are disinclined to proceed, but unwilling to offer no evidence; in such circumstances, the defendant’s consent is insufficient reason for ordering a whole indictment to lie on the file. ... R. v. Central Criminal Court ex p. Spens, The Times, 31 December 1992.”
It is, however, questionable whether the High Court in fact had jurisdiction in ex parte Spens to review the decision of the Crown Court to stay the prosecution permanently by ordering that the indictment lie on the file. The decision of the High Court that it had such jurisdiction was based, inter alia, on earlier decisions of the High Court in R. v. Central Criminal Court ex parte Randle and R. v. Norwich Crown Court ex parte Belsham. In the subsequent case of Re Ashton (R. v. Manchester Crown Court and others ex parte Director of Public Prosecutions) [1994] AC 9, the House of Lords approved the decision in the case of ex parte Raymond and overruled those in Randle and Belsham. It was further held that, whether or not the result in ex parte Spens could be justified on other grounds, it could not be justified on the basis of the reasoning in Randle and Belsham.
The suggestion that charges should be left on the file typically comes from the prosecution. Only the consent of the trial judge is required for the order to be made but in practice the judge usually requires that the defence also agree. The order, as a decision made in the conduct of a trial on indictment, cannot be challenged on appeal to the Court of Appeal (R. v. Mackell, 74 Cr.App.R. 27 (CA)). According to R. v. Central Criminal Court ex parte Raymond approved in Re Ashton (both cited above), the order cannot be challenged on judicial review.
The prosecution may apply for leave to proceed upon charges left on the file. The application is made to the Court of Appeal if the reason for re-opening the proceedings is that the counts on which the defendant was convicted have been quashed. In other cases, the application would be made to the court which made the order to leave the charges on the file. Applications to re-open proceedings and orders granting such applications are exceptional.
In considering whether to grant an application to re-open proceedings, the relevant court examines whether the re-opening would be fair and whether it would constitute an abuse of process (for example, on the grounds of excessive delay between the alleged commission of the offence and the new trial or an undertaking of the prosecution to the former defendant that the matter would not be pursued). In this latter respect, the High Court has found that the prosecution of a person who had received a representation or promise that he would not be prosecuted was capable of being an abuse of process of the court notwithstanding the absence of bad faith (R. v. Croydon Justices ex parte Dean ([1993] QB 769 (DC).
In R. v. Central Criminal Court ex parte Raymond (cited above), Lord Justice Woolf commented that:
“... in the majority of cases where such an order is made, there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial, the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused.”


ITEMID: 001-81684
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOREA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1971 and lives in Chişinău.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The applicant worked as a deputy Head of the Botanica Police Section in Chişinău. On 13 November 2001 an investigation was initiated against him for unlawfully releasing two suspects from detention on remand.
9. On 12 March 2002 the Chişinău Prosecutor's Office discontinued the investigation, finding that the charges had been based solely on the statements of two witnesses who had subsequently withdrawn them, declaring that they had made the statements as a result of ill-treatment by the police. Their statements were not supported by other evidence. On the same day the prosecutor informed the applicant of the decision by sending a letter to apartment no. 140, to where the applicant had recently moved. He sent a copy of his decision to the Chişinău head prosecutor “for information and control”. However, the applicant was dismissed from his position.
10. The applicant initiated court proceedings seeking his reinstatement and the payment of salary arrears for the entire period of his involuntary absence from work. On 25 April 2002 the Court of Appeal accepted his claim. The court found that the criminal investigation against the applicant had not established his guilt and had been discontinued. It also found that the applicant had not prejudiced the proceedings against the released prisoners, one of whom was later found not to have committed any crime and the other re-arrested. His case is still pending.
11. On 13 October 2003 the applicant was employed as an officer of the Centre for Fighting Economic Crime and Corruption (CFECC).
12. On 19 November 2004 he was allegedly summoned by his superiors and pressured into arresting Mr Sarban, the secretary of the Chişinău Municipality. On the same day the applicant arrested Mr Sarban.
13. On 20 December 2004 a video recording of the applicant's statement in connection with Mr Sarban's arrest was broadcast on television. The applicant stated that the criminal investigation against Mr Sarban had been invented for political purposes and that there had been no lawful reason for initiating it (see Sarban v. Moldova, no. 3456/05, § 18, 4 October 2005).
14. According to the applicant, on 21 December 2004 the Head of the Internal Security Department of the Prosecutor General's Office requested the Chişinău Prosecutor to forward the criminal case file against him.
15. On 29 December 2004 the Prosecutor General re-opened the criminal investigation, finding that its discontinuation in March 2002 had been unlawful because it had not been based on a proper assessment of all the circumstances, that discrepancies in the evidence had not been entirely resolved and that the alleged facts had not been shown to be true. No order was given to open an investigation against the officer who had discontinued the investigation against the applicant.
16. On 8 February 2005 the applicant was requested to appear as a suspect before a prosecutor at the Prosecutor General's Office. The relevant letter was sent to apartment no. 121, where the applicant had not lived since early 2002. On 14 February 2005 a prosecutor reported that it had been impossible to serve the summons on the applicant since nobody had been at home, so it had had to be pinned to the front door. On 13 April 2005 another summons was issued and on 14 April 2005 a similar report was drawn up, both in respect of apartment no. 121.
17. On 18 April 2005 the prosecutor ordered that the applicant be brought before him, by force if necessary. On 25 April 2005 another report confirmed the absence of the applicant from apartment no. 121.
18. On 25 April 2005 the prosecutor brought charges against the applicant. No mention was made of his failure to appear before him during the investigation.
19. On 26 April 2005 the Râşcani District Court issued a warrant for the applicant's arrest and detention for 30 days, finding that he had been absconding from the investigation, was obstructing the establishment of the facts, could re-offend and was a wanted person.
20. On 11 May 2005 the prosecutor sent the relevant documents to the Buiucani Police Section in order to have the applicant declared a wanted person.
21. On 18 May 2005 the applicant was arrested in the street and was told of the warrant for his arrest issued on 26 April 2005. On 19 May 2005 he was brought before a judge who informed him of the decision of 26 April 2005. The applicant appealed, complaining that he had not been notified of the investigation and that it was therefore unjust to accuse him of absconding from it. He argued that he had a permanent residence, a job and a family with two children to support. He had no criminal record, and had he intended either to abscond from the investigation or to interfere with it, he could have done so earlier. He also underlined that the criminal investigation against him had been discontinued in 2002. He invoked Article 5 of the Convention and asked for his release pending trial, promising not to leave the city.
22. On 24 May 2005 the Chişinău Court of Appeal rejected his appeal, finding that the lower court had “given proper reasons for the application of the preventive measure and [had] not commit[ed] any procedural violation”.
23. On 30 May 2005 the prosecution formulated the final charges and on 1 June 2005 the case was submitted to the trial court.
24. According to the Government, the trial court set the date for the first preliminary hearing for 24 June 2005. On that date the Prosecutor General designated another prosecutor to the case and the hearing was accordingly adjourned to 28 June 2005. Since this new prosecutor already had a case scheduled for that date there was another adjournment. On 4 July 2005 the prosecutor asked for the case to be transferred to another court, a request which was eventually rejected by the Supreme Court of Justice on an unknown date. A new date for the preliminary hearing was set for 26 August 2005 but the hearing was adjourned due to the absence of witnesses. According to the applicant, he made habeas corpus requests at each hearing but none was examined because of the adjournments, and no formal decision was ever adopted. The Government have not denied this.
25. On 30 August 2005 the applicant made a written request for the replacement of detention by a different preventive measure. He complained that the summons had been deliberately sent to the incorrect address and that the examination of his case was being delayed without reason.
26. On 2 September 2005 the Botanica District Court rejected that request, principally because it found that the applicant had absconded from the criminal investigation. The court noted that the applicant had twice been served summonses at “... apartment no. 121, where, according to his personal file, he [is] registered” but had not appeared before the prosecutor and could not be brought by force as he was not found at the address. The court concluded that the grounds on which the detention on remand had been ordered remained valid as the applicant could abscond or interfere with the investigation. In rejecting the habeas corpus request the court decided that “the measure of detention on remand should be maintained”.
27. On 3 November 2005 the applicant made another habeas corpus request, complaining of unnecessary delays in his case. The prosecutor partly agreed and asked the court to release the applicant and to place him under house arrest because no witnesses had been heard by that stage. On the same day, the Botanica District Court accepted the request and ordered the applicant's house arrest, prohibiting him from leaving his apartment, talking to prosecution witnesses or using the telephone. Based on the annex to his identity card stating his permanent address as apartment no. 140, the court ordered the applicant's house arrest at that address. On 15 December 2005 the applicant's house arrest was replaced by an undertaking not to leave the city.
28. In December 2006 the applicant asked the trial court to annul the Prosecutor General's decision of 29 December 2004 to re-open the criminal investigation into his case and to discontinue the investigation. He argued that the re-opening had violated both his right not to be prosecuted twice for the same act and the principle of legal certainty, contrary to Articles 22 and 287 of the Code of Criminal Procedure and Article 5 § 1 of the Convention.
In its judgment of 13 December 2006 the Buiucani District Court cited Articles 22 and 287 of the Code of Criminal Procedure (“the CCP”) and found that:
“...
Having examined all the evidence during the hearing, the court considers it necessary to discontinue the case due to the existence of circumstances which prevent the initiation of proceedings and the pursuance of criminal charges, namely the prohibition on repeated charges being brought against the same person for the same offence.
During the court hearing, it was established that the criminal proceedings in the case of Gorea Grigore were initiated on the basis of the criminal proceedings initiation order of 13.11.2001(vol I/fd I).
According to the order of the senior investigator at the Prosecution Office of the Town of Chisinau, I. Batalai, of 12.03.2002, the criminal case against Gorea Grigore was dropped due to lack of constitutive elements for the offence (vol II/71).
By order of the Prosecutor General of the Republic of Moldova dated 29.12.2004, the order of 12.02.2002 which had discontinued the proceedings was cancelled and the criminal proceedings were resumed. The reason given was the illegality of the order which dismissed the trial, which ran counter to the evidence gathered during the investigation, the [fact that the] circumstances allowing such a dismissal did not exist and that the contradictions between the statements of Gorea G. and those of the witnesses have not been explained and that no procedures had been carried out in order to establish the identity of the persons who had inserted the information in the record registers and statistics cards (vol II/75).
The court finds that the above conclusion is contrary to the evidence in the file.
In the order of dismissal of the criminal case, dated 12 March 2002, the evidence is described in detail and analysed and a conclusion is drawn. In the order of annulment of 29 December 2004, however, there is no analysis of the circumstances and the reasons for rejecting the conclusion regarding the lack of constitutive elements of the offence. A simple statement pointing to the illegality of this procedural act cannot serve as a legal ground to resume legal proceedings.
Therefore, the court reaches the conclusion that the order of dismissal of the criminal trial of 12 March 2002 was determined on the basis of the evidence in the file and issued in accordance with current legislation.
Therefore, in accordance with Art 287 CPP, the conditions necessary for resuming the criminal proceedings are not met; [this situation also gives rise to] a case of a person being tried twice for the same offence, which excludes the resumption of the criminal investigation and the charging of Gorea Grigore.
...
In accordance with Art 391, Code of Penal Procedure, the court decides:
CESSATION OF PROCEDURE
The criminal proceedings are discontinued against [the applicant] ... owing to the existence of circumstances which exclude the initiation of criminal proceedings and the charging of a person, namely the prohibition on repeatedly charging a person with having committed the same offence.”
This judgment was upheld by the Chişinău Court of Appeal on 12 February 2007. No appeal was lodged and the judgment became final.
29. According to the applicant, he was detained at the remand centre of the Police Inspectorate in inhuman and degrading conditions. In particular, there was very limited access to daylight and no exercise outside the cell; poor quality food; overcrowding (three men in a 6 m2 cell, part of which was taken up by a toilet which was not separated from the rest of the cell); heat and humidity; irregular artificial ventilation for short periods despite the fact that the other detainees were smoking in the cell, which created breathing problems for the applicant; a lack of any kind of bedding; and access to a shower only once a week. He was not allowed to receive any visits from his wife and was placed in a cell with convicted criminals even though he was a former criminal investigator (see paragraph 38 below). He submitted a video recording of an interview with one of the persons with whom he had shared the cell. In that recording the person interviewed confirmed the description given above of the conditions of detention. The Government have not commented on this interview.
30. The applicant claimed that his health had seriously deteriorated, that he suffered from headaches while in detention and that the medical treatment given to him was not effective. He was refused a specialist medical examination to determine what was wrong with him and how best to treat him.
31. According to the Government, the applicant was held in three different cells in which each detainee had at least 4m2 of space. One of the cells in which the applicant was detained (no. 22) measured 12.8m2 and the applicant shared it with three others (including A.M. and G.A.). There was sufficient ventilation and access to daylight, unlimited access to tap water and the toilet was separated from the rest of the cell by a lateral partition. The food was of adequate quantity and quality and was cooked by staff at a university, as confirmed by the relevant receipts. Moreover, the applicant was allowed to receive bedding from his wife. The applicant's detention was short and in June 2005 he was transferred to another remand centre.
32. In order to show the changes in the conditions of detention in Moldovan prisons, the Government referred to several documents concerning programmes designed to improve the conditions of detention in Moldovan prisons (see paragraph 39 below).
33. In the Government's opinion, the applicant was given sufficient medical assistance, as demonstrated by his personal medical file submitted to the Court. All his requests were properly registered and he had been seen by a variety of specialists who recommended treatment, which he had received. In particular, the applicant was subjected to an in-depth (NMR) analysis which had not revealed any change in his earlier, satisfactory, state of health. Moreover, the applicant refused to submit the results of his pre-detention medical examinations which meant that there was no medical basis for an additional NMR scan, as confirmed by the prison doctors. The applicant had not been detained along with previously convicted persons, as proved by a letter from the Minister of Justice.
34. The relevant findings of the CPT read as follows:
“11. ... It appears from the findings of the CPT delegation that in 2004 the practice of detaining suspects for prolonged periods – sometimes months – in EDPs is still largely followed. Yet the visit has confirmed that EDPs of the Ministry of Internal Affairs will never be able to offer suitable detention conditions adapted to the needs of persons remanded in custody for prolonged periods.
4. Conditions of detention.
a. Institutions of the Ministry of Internal Affairs
41. Since 1998, when it first visited Moldova, the CPT has had serious concern about the conditions of detention in the institutions of the Ministry of Internal Affairs.
42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did persons obliged to spend the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...
47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many respects to amount, for the detainees, to inhuman and degrading treatment.”
The relevant provisions of the CPT standards (CPT/Inf/E (2002) 1, Rev. 2004) read as follows:
“The duty of care which is owed by the police to persons in their custody includes the responsibility to ensure their safety and physical integrity. It follows that the proper monitoring of custody areas is an integral component of the duty of care assumed by the police. Appropriate steps must be taken to ensure that persons in police custody are always in a position to readily enter into contact with custodial staff.”
35. The relevant domestic law has been set out in this Court's judgment in the case of Sarban v. Moldova (cited above, § 51 et seq.). In addition, the following provisions are relevant to the present case:
36. The relevant provisions of the Constitution provide:
“Article 4.
(1) Constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties endorsed by the Republic of Moldova.
(2) Wherever disagreements appear between conventions and treaties signed by the Republic of Moldova and her own national laws, priority shall be given to international regulations.
Article 25
(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be appealed, in accordance with the law, to a hierarchically superior court. The period of detention may be subject to extensions only by a court, in accordance with the law, up to a total of twelve months.”
37. The relevant provisions of the Code of Criminal Procedure provide:
“Article 22
(1) No one shall be prosecuted by the investigating authorities, convicted or sentenced by a court several times for the same deed.
...(3) The decision of the investigating authority to drop the charges (scoaterea persoanei de sub urmărire penală) or to discontinue the criminal investigation (încetarea urmăririi penale)... shall prevent the re-opening of the investigation ..., except when new or recently discovered circumstances are discovered or a fundamental flaw in the previous investigation affected that decision.
Article 287
(1) The re-opening of an investigation after its discontinuation, the dismissal of the investigation (clasarea cauzei penale) or the dropping of charges is ordered by the hierarchically superior prosecutor by means of a decision, if it is thereafter discovered that there was no reason for taking the measure or that the circumstance which had led to the discontinuation of the investigation, its dismissal or the dropping of the charges has disappeared.
...(4) Where a decision to discontinue the investigation, to dismiss it or to drop the charges was adopted lawfully, the investigation can only be re-opened if new or recently discovered circumstances are revealed or if the decision was affected by a fundamental flaw in the previous investigation. Where a fundamental flaw in the investigation is discovered, the criminal prosecution can be re-opened not later than one year following the entry into force of the order discontinuing the criminal investigation, dismissing the criminal case or dropping the criminal charges.”
38. The relevant provisions of the Law no.1226-XIII on Pre-trial Detention, in force at the time, provide:
“Article 14
(1) In placing the accused in cells the following requirements shall be observed:
2) The following shall be detained separately from other detainees:
... (f) persons who before their arrest worked for the public authorities, including the courts, the prosecution service, internal affairs, national security; ...”.
39. On 24 October 2003 the Parliament adopted decision no. 415-XV regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The plan includes a number of objectives for 2004-2008 aimed at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-59456
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF T.P. AND K.M. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6;Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 9. T.P., the first applicant, gave birth to her daughter, K.M., the second applicant, on 29 January 1983. T.P. was then aged 17 years.
10. Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that the second applicant was being sexually abused, partly as a result of the second applicant having a persistent urinary tract infection, partly because of her behaviour, including a remark made at the children’s hospital where she was admitted for treatment. She had told a social worker that B., the first applicant’s then boyfriend, had “hurt my bum”. In or about March 1986, surgery took place to re-implant the second applicant’s right ureter into her bladder. At a date unspecified, she also had surgery to remove a false second kidney. She continued to have urinary problems and associated infections.
11. There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986. Concern was expressed, inter alia, about the applicants’ home situation, where there was “a steady stream of young men” and about the first applicant’s ability to protect the second applicant and general parenting skills. The social worker Mr P. had mentioned the possibility of sexual abuse with the first applicant. In a later affidavit, he stated that she appeared angry that it was a concern and claimed that she never left K.M. alone with anyone and that K.M. would tell her if anyone hurt her.
12. In June 1987, during a visit to their home, social workers obtained information regarding their living arrangements including the fact that XY, the first applicant’s boyfriend, lived with the applicants. Concern was expressed regarding the first applicant’s care of her daughter and a case conference was held on 2 July 1987 to which the first applicant was not invited. As a result of the conference, the second applicant was placed on the Child Protection Register under the category of emotional abuse. It was also agreed at the conference that the social worker Mr P would obtain the first applicant’s consent for the second applicant to have a disclosure interview at a child guidance clinic. A further medical examination of the second applicant at the children’s hospital discovered no medical cause for her recurrent urinary infection. The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic.
13. On 13 November 1987, at a child guidance clinic, the second applicant was interviewed by a consultant child psychiatrist, Dr V., employed by Newham health authority. The social worker, Mr P., was present during the interview whilst the first applicant waited in an adjoining room. The interview was recorded on videotape. The second applicant was aged four years and nine months at this time.
14. In the course of the interview, the second applicant disclosed that she had been abused by someone named X. The first applicant’s boyfriend, XY, shared the same first name, X, as the abuser. The transcript recorded inter alia:
“Dr V.: (referring to a drawing made by K.M.) Whose face is that then?... Is that anyone, anybody special that face or just any face?
K.M.: X’s.
Dr V.: X’s face OK. Then who’s X? Is X someone you know?
K.M.: My mum’s X.
Dr V.: Oh your mum’s X. What is that mummy’s boyfriend. Is it?
K.M. shakes her head.
...
Dr V.: ... Is X still living at home with you?
K.M.: shakes her head.
Dr V.: He’s not.
K.M.: Thrown him out my mum.
Dr V.: Your mum throwed him out did she.
...
K.M.: He’s coming in tomorrow.
Dr V.: He’s coming in no more.
K.M.: No he’s coming in tomorrow.
Dr V.: He’s coming in tomorrow. What X.
K.M. nods.”
15. The first applicant was then interviewed, again on video, and informed that the second applicant had disclosed that she had been sexually abused by XY. She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination. When the first applicant asked whether or not her daughter was being taken into care, she received no reply. Dr V. also told the first applicant that she could see the recording of the interview with her daughter at some point.
16. After the interview, the first applicant asked her daughter if she had been abused by XY. The first applicant stated that the second applicant denied that she had been abused by XY and told this to Mr P. When the first applicant became agitated and angry, Dr V. and Mr P. both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation. Mr P. and Dr V. came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately. In comments made to the first applicant in her interview, the possibility that in due course she could see the video of the disclosure interview was referred to by Dr V. and Mr P.
17. Later, on 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order. The local authority stated that the second applicant had been abused, had identified XY as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The first applicant was not in court. A place of safety order was granted for 28 days.
18. On 18 November 1987, the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings.
19. On 24 November 1987, the first applicant, having excluded all men from her home, applied to the High Court for the second applicant to be made a ward of court. The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse. The local authority was awarded care and control of the second applicant and the first applicant was granted limited access. The local authority did not volunteer the video of the interview with the child.
20. Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant was permitted initially two hours of supervised contact with her daughter each week at the foster parent’s home. Following concerns that the first applicant was trying to induce her daughter to retract her evidence and was causing her distress, that access was altered to no telephone calls and one supervised access visit per week at the social services’ office. The second applicant had no contact with her extended family, including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority.
21. During this period the second applicant continued to have urinary problems, including incontinence. In April 1988, she underwent another operation, which improved her condition, though she remained subject to frequent infections.
22. During 1988, the first applicant gave birth to a son, D., fathered by XY. D. was made a ward of court but the local authority did not apply to remove D. from the care of his mother and XY.
23. In or about October 1988, Dr B., who had been instructed on behalf of the first applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused, obtained the consent of Dr V. to view the video recording of the second applicant’s disclosure interview. In his letter dated 17 October 1988 to the first applicant’s solicitor, he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and that there appeared to be little doubt that she was identifying the mother’s boyfriend as the perpetrator. He recommended that the first applicant be allowed to see the video. He referred to Dr V.’s continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information. Dr V. informed Dr B. that she would not consent to the first applicant having access to the video until after the full hearing in the wardship trial.
24. On 1 November 1988, during the wardship proceedings regarding D., Registrar Conn ordered that the video be disclosed within seven days. The health authority and Dr V. issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant.
25. In her affidavit of 8 November 1988, Dr V. expressed her opinion that medical confidentiality be attached to the video and that it should only be disclosed if in the interests of the child, which the circumstances showed was not the case.
“It is my professional belief that for the parties to see the video recording is not in the interests of children, and in particular not in this case. The possible harm to children arises from them being in the position whereby their words or actions, given in confidence, may control events or decisions. Anger, unforgiveness or victimisation may well be directed at the child especially if the purpose of the viewing is to enable a party to seek to establish his or her innocence of alleged Child Sexual abuse or to confirm a party’s view that no Child Sexual abuse has taken place and that the child must be lying.”
She had no objection to the lawyers and medical experts seeing the tape and transcript.
26. By reports dated 11 November 1988, Dr B. and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children. Dr B. noted generally that the mothers of abused children would often be in a position to clarify details, including the identity of the alleged abuser. He also understood that the video had already been shown by the police to XY in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity. He saw no risk of harm flowing to the second applicant from such disclosure.
27. On an unspecified date at or about that time, the first applicant’s solicitors had sight of the transcript. The transcript showed that the second applicant had shaken her head when asked whether the abuser was living at home and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters, which were inconsistent with the identification of XY as the abuser, were raised by the first applicant’s solicitors with the local authority on or about 11 November 1988, when the summons concerning the video was to be heard.
28. On 21 November 1988, at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and XY for a trial period of four to six months at which point a final proposal would be made. In a report dated 18 November submitted for that hearing, a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case, that there was now doubt as to the identity of the abuser but that whoever it was, the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her. While there had been doubts as to the first applicant’s ability to be a “good enough parent”, it was noted that her situation had changed – she had “matured”, had had a second child and was in a stable relationship with the second child’s father. If over the trial period, any further abuse occurred, it was proposed that the second applicant be removed permanently with a view to adoption and that D.’s future be assessed. In her affidavit of 21 November 1998, the first applicant said that she had been informed, and believed, that the video and transcript had been reviewed by the local authority who had concluded that her boyfriend XY was no longer a suspected abuser. Mr Justice Lincoln ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant. The matter was adjourned for a period of not more than six months.
29. The second applicant remained with the first applicant from that time onwards. In about November 1989, the final hearing took place in the High Court. The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court. The wardship was discharged.
30. On 8 November 1990, the applicants issued proceedings making allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P., and the psychiatrist, Dr V., failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant. The health authority and Dr V. were also named as defendants. The applicants claimed that as a result of their enforced separation each of them had suffered a psychiatric disorder.
31. Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis. He issued two reports, one dated 21 February 1991 and the second undated, concerning the effects of the separation and proceedings.
32. On 19 November 1992, Master Topley struck out the application as revealing no cause of action on the basis that Dr V. enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims. The applicants’ appeal to the High Court was dismissed on 17 March 1993 by Judge Phelan who held that no claim could arise from any alleged right to custody of a child which would give rise to an award of damages.
33. In the Court of Appeal, the High Court’s striking out decision was upheld on 23 February 1994. The majority found that no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980 could arise, due to the general nature of the duty, the imprecise terms in which it was couched and the fact that the alleged breach of duty took place before the child was taken into care under the statutory duty in question. They held in respect of the claims that Mr P. and Dr V. were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions. The psychiatrist Dr V. was acting in order to advise the local authority and owed a duty of care to the local authority, not to the first or second applicant. Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries. Reference was made to the policy considerations weighing against imposing liability in such matters. However, the Master of the Rolls, Sir Thomas Bingham, dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority (reported as M v. Newham LBC; X v. Bedfordshire CC (CA) 2WLR 554). Leave was granted to appeal to the House of Lords.
34. On appeal to the House of Lords, the decision of the majority of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson delivered the leading judgment concerning three cases, the Bedfordshire case, the Newham case (the applicants’ case) and the Dorset case (reported as X and Others v. Bedfordshire County Council [1995] 3 AER 353).
35. As regarded the claims for breach of statutory duty made in both the Newham and Bedfordshire cases, Lord Browne-Wilkinson held:
“... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...
When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”
36. In respect of the applicants’ claim in the Newham case that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows:
“In the Newham case [the applicant’s case] the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...”
Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...
In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ...
Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ...
In the Newham case [the applicant’s case] it is not alleged that the borough council was under any direct duty of care to the plaintiffs: the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants.”
37. In the Bedfordshire case, where the applicant children had argued that the local authority owed them a direct duty of care in the exercise of their child care functions, Lord Browne-Wilkinson stated, insofar as relevant, as follows:
“I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...
The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.
First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.
Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244:
‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’
Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.
The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.
If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.
Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”
38. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980.
Sections 1 and 2 of the Child Care Act 1980 provided that:
“1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.
2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen-
(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;
(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and
(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.”
39. Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control.
40. The place of safety order was replaced with the emergency protection order under section 44 of the Children Act 1989, which came into force on 14 October 1991. This provided for removal of a child on emergency grounds for a maximum period of 72 hours.
41. Section 76 of the Child Care Act 1980 permitted the Secretary of State to cause an inquiry to be held into any matter relating, inter alia:
“the functions of the social services committee of a local authority, in so far as those functions relate to children.”
42. Pursuant to Part III of the Local Government Act 1974, as amended, the Local Commissioner for Administration (the Local Government Ombudsman) had the function, inter alia, of investigating written complaints by persons who claim to have sustained injustice “in consequence of maladministration in connection with ... action taken in exercise of administrative functions of local authorities”. On conclusion of an investigation, Local Government Ombudsmen could recommend an appropriate remedy, including the payment of compensation, where maladministration was found.
43. The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court.
44. As soon as the originating summons was issued, the custody of the child vested in the court. From that moment, the parties to the proceedings, including the local authority, only had such power and authority over the child as was conferred by the court.
45. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence, defamation etc.
46. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship of proximity to the defendant;
– that it is fair, just and reasonable to impose liability on the defendant.
These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).
47. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.
48. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The leading judgment is reported at length in the facts above (see paragraphs 45-46).
49. Since the X. and Others case, there has been two further significant judgments regarding the extent of liability of local authorities in child care matters.
50. The Court of Appeal gave judgment in the W and Others v. Essex County Council ([1998] 3 All ER 111, judgment of 2 April 1998). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G, a 15 year old boy, in their home although they knew that he was a suspect or known sexual abuser. During G’s stay in their home, the plaintiffs’ three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents’ claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal’s findings as follows:
“(1) ... In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that the common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents ...
(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...”
51. On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed.
52. The House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.
53. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care:
“(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”
54. At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.
55. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, even assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.
56. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issued need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-95297
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KALLIS AND ANDROULLA PANAYI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The applicants were born in 1947 and 1950 respectively and live in Nicosia. They are a married couple.
7. The parties disagree as to the facts of the case.
8. On 3 June 1996 Stelios Kalli Panayi, the applicants' son, who at that time was nineteen years old, was serving in the Cyprus National Guard as a private soldier. Early that morning he entered the United Nations (UN) buffer zone in Nicosia. He wanted to exchange his hat with one belonging to a soldier of the Turkish-Cypriot armed forces. He was off duty and unarmed. The Turkish armed forces shot him.
9. When members of the UN force in Cyprus (UNFICYP) attempted to reach Stelios Kalli Panayi in order to provide medical treatment and try to save his life, the Turkish armed forces opened fire, thus preventing medical aid from being administered.
10. According to the applicants, who cited articles published in the Cyprus Mail newspaper of 5, 6 and 7 June 1996 in this connection, had access not been denied to the persons seeking to provide medical assistance there would have been a good chance of saving Stelios Kalli Panayi's life.
11. The applicants produced a report from the UN Secretary-General dated 7 June 1996. In so far as relevant, this document reads as follows:
“The third incident took place on 3 June 1996. An unarmed National Guard soldier was shot and killed inside the UN buffer zone in central Nicosia. The investigation has revealed that the lethal round was fired by a Turkish-Cypriot soldier whom UNFICYP had observed entering the buffer zone with his rifle strung across his back. Shortly thereafter a single shot was heard and the Turkish-Cypriot soldier was seen running back in a crouched position to the Turkish ceasefire line holding his rifle in his right hand. UNFICYP soldiers were prevented from reaching the National Guard soldier by Turkish-Cypriot soldiers who fired shots in the direction of the UNFICYP soldiers each time the latter tried to move forward. UNFICYP strongly protested to the Commander of the Turkish forces in Cyprus the unauthorised entry of an armed Turkish Cypriot soldier into the buffer zone, the shooting incident and the hostile action, including live fire against UNFICYP. UNFICYP is pursuing with the Turkish forces in Cyprus and with the Turkish-Cypriot authorities the question of appropriate action and has requested that UNFICYP police investigating the killing be able to interview the Turkish-Cypriot soldier involved in the incident. The military authorities on both sides have been urged once again to respect the UN buffer zone and ensure its integrity.”
12. The applicants' lawyer requested a copy of the relevant reports from UNFICYP. However, his request was refused as the documents in question were considered to be internal UN documents.
13. According to the Government, the chain of events which led to the death of Stelios Kalli Panayi could be summarised as follows.
14. The incident took place in a part of Nicosia where the Pedios River marked the boundary of the “Turkish Republic of Northern Cyprus” (the “TRNC”). In the Turkish part of the buffer zone were the Yıldırım sentry post and the positions of the Turkish-Cypriot security forces. The positions of the Greek-Cypriot army (the National Guard) were on the Greek-Cypriot administration's defence line, 2-3 metres west of the UNFICYP patrol road. The UN-60 observation post was about 250 metres south of the sentry positions of each of the two sides. The Yıldırım sentry post was located on high ground which ran down steeply to the river bed; the latter was marshland, covered with high reeds; on the Greek-Cypriot side there were huge eucalyptus trees.
15. The UN patrol road was on the other side of the river and entry into “TRNC” territory by UNFICYP soldiers was possible only by crossing a wooden bridge. The area starting five metres west of the Yıldırım sentry post in the direction of the Greek-Cypriot sentry post could not be observed from the UN observation post building, which had a view over the Turkish and Greek-Cypriot positions but not the area in between.
16. On the day of the incident it was observed from the Yıldırım sentry post that a fully armed soldier of the National Guard, who was wearing army uniform, had come out of his duty station and had entered the buffer zone. He made gestures by hand and called to the Turkish-Cypriot soldiers on sentry duty to go over to him. One of the Turkish-Cypriot soldiers on duty warned him in a loud voice in Turkish, English and Greek not to approach; another Turkish-Cypriot soldier asked the Turkish-Cypriot patrol to come to the area. Ignoring the verbal warning, Stelios Kalli Panayi proceeded into the buffer zone and descended towards the river bed; a Turkish-Cypriot soldier came out of his sentry post and walked about 5 metres in a westerly direction in order to be able to observe the National Guard soldier advancing. At this moment another Turkish-Cypriot soldier took up position on the southern side of the communication trench; a soldier was also located above the trench at a point where he could have a better view of the vicinity of the river. He shouted once more to the Greek-Cypriot soldier, using the Greek word “Ochi” (“No”), and instructed him to leave the area.
17. In spite of this Stelios Kalli Panayi entered into “TRNC” territory by crossing the wooden bridge which only UNFICYP soldiers were allowed to use. Two warning shots were fired by a Turkish-Cypriot soldier (one into the air and one towards the ground); as Stelios Kalli Panayi proceeded further into “TRNC” territory, causing a serious threat to the lives of the Turkish-Cypriot soldiers, one more shot was fired to stop him.
18. On hearing the gunshots, a UNFICYP soldier came out of his observation post, located 250 metres south of the scene of the incident and started to look around; as he did not have a clear overall view, he proceeded towards the place where the gunshots had been heard and was about to cross the bridge. However, he was warned by means of two shots fired into the air by the Turkish soldiers not to advance any further. In fact, the situation was still critical as it was not known whether Stelios Kalli Panayi had adopted a more advantageous crawling position.
19. At 7.01 a.m. an ambulance arrived in the area by the Peace Force patrol road. Stelios Kalli Panayi was placed in the ambulance, which left for the hospital. Later, the Turkish-Cypriot authorities were informed that he had died.
20. The Government produced a number of documents, including:
(a) a map and some photographs of the area where the incident had taken place;
(b) a list of the “incidents that took place at the Greek-Cypriot Guard Post”, giving details of 69 episodes, including firing into the air, provocation by throwing stones and use of abusive language;
(c) several articles published by Turkish and/or Turkish-Cypriot newspapers concerning the circumstances of the killing of Stelios Kalli Panayi, the differences between the versions of the facts given by the two sides and political reactions to the incident.
21. The Government further produced the following documentary evidence:
(a) A note dated 6 June 1996 from the “TRNC” Ministry of Foreign Affairs and Defence addressed to the Office of the Prime Minister (with a copy to the Director of Intelligence, Counter-Intelligence and Security), which reads as follows:
“Upon being informed that a Greek Cypriot pathologist accompanied by UNFICYP will conduct an investigation at the scene of the incident whereby on 3rd June 1996 a GCNG soldier was shot, the UNFICYP has been contacted so that a pathologist from our side could also conduct a similar investigation at the scene of the incident on the basis of the principle of equality as well as reciprocity.
In accordance with the agreement reached with UNFICYP, the same day Dr. Engin Arkan from Dr. Burhan Nalbantoğlu State Hospital has conducted an investigation at the scene of the incident and the report that he prepared is enclosed herewith.”
(b) The following note dated 6 June 1996 signed by Dr Engin Arkan and addressed to Dr Burhan Nalbantoğlu of Lefkoşa (Nicosia) General Hospital (with a copy to the Director of Intelligence, Counter-Intelligence and Security):
“Regarding the shooting of a Greek-Cypriot soldier today in the buffer zone, accompanied by UNFICYP I went to the scene of the incident. In order to reach the scene of the incident, we crossed the bridge known as the Normandy bridge in the buffer zone by vehicle, went to the vicinity where the GCNG and UNFICYP positions are located and stepped out of the vehicle. From there we proceeded to the north by crossing a wooden bridge and from right after there we reached the scene where the incident took place, which is approximately 50-75 meters from the Turkish positions in the North. At the said place there were [a] trail of blood with 15cm diameter and a GCNG cap. According to the explanation given to me the bullet entered from the side of the right rib cage and exited from the left and it was also explained that the bullet also smashed the right arm from below the shoulder.
Also according to the explanation given to me, the corpse [was] found lying with his head towards North-West and foot South-East direction.
After having this information, accompanied by UNFICYP, [I] returned to Ledra Palace and entered TRNC by walk.”
(c) A statement by the “TRNC” Ministry of Foreign Affairs and Defence, which reads as follows:
“This morning at 6.30 hours in Köşklüçiftlik area of Lefkoşa a fully equipped GCNG soldier was observed approaching the Turkish position in the area, upon which he was warned to stop by our guard first in Turkish, then in Greek and English. GCNG soldier continued to proceed towards our guard and our guard fired two warning shots, one in the air and one to the ground. Despite numerous verbal warnings and warnings by fire, the GCNG soldier continued to proceed and violated the border, a shot was fired and he was observed to fall down. At 7.00 hours with the arrival of UNFICYP ambulance to the scene the GCNG soldier was evacuated.
We protest and condemn this irresponsible act which resulted in the violation of the borders of TRNC and remind once more the necessity for application of required measures by the parties concerned to prevent recurrence of such incidents.”
(d) An “information document on death incident”, a copy of which was addressed to the Director of Intelligence, Counter-Intelligence and Security and which contained the following information:
“1. TYPE OF INCIDENT: Firing on the Greek-Cypriot National Guard (GCNG) soldier who violated the Turkish Contact Line.
2. PLACE OF INCIDENT: Northeast of YILDIRIM Guard Post (317.5 – 931.9).
3. PLACE OF UNIT WHERE INCIDENT OCCURRED: 1st Infantry Regiment 3rd Infantry Battalion 8th Infantry Company.
4. DATE/TIME OF INCIDENT: 030630 C June 1996.
5. DETAILS OF INCIDENT: On the 3rd of June, 1996 at 6:30, the guards situated at the YILDIRIM Guard Post, in the 3rd Infantry Battalion, saw a fully equipped GCNG soldier approaching the wooden bridge on KANLI DERE, which only UNFICYP Patrol is permitted to use. Then, the guards at the post called the Patrol guards, who were 250 meters to the south of the Guard Post and at the same time they verbally warned the GCNG soldier. Since the GCNG soldier suddenly disappeared, one of the guards from the Guard Post moved 10 meters forward from the post and continued observing.
One of the Patrol Guards, who came to the area warned the GCNG soldier verbally and by gun, and then fired and shot him, while he was passing the wooden bridge and violating the TRNC border. After the arrival of UNFICYP and Turkish officers to the area, the GCNG soldier, who fell down, was taken by ambulance at 07:05 and it was found out that he was dead.
The guards of ZYAD Guard Post, which is to the south of the YILDIRIM Guard Post, Infrantry Private Ecevit AKSU and Infantry Private Dogan GURCE observed the acts of UN-60 UNFICYP Guard, when the incident occurred. They stated that the UNFICYP Guard was sitting at the guard post when the incident occurred and he went out after he heard the first gun shot. Then he started to observe the YILDIRIM Guard Post. 3-5 seconds later, he heard 2 gun shots and he ran to the area of the incident. After 5-6 minutes, 2-3 more bullets were fired. The total number of shots heard was 6 or 7.
During the incident, the Patrol Guards Infantry Corporal Zafer Ali SECKIN fired 5 times (one bullet into the air as a warning, one bullet at the ground as a warning, one bullet to the target, and 2 bullets into the air as warning to stop the UNFICYP soldier). The other Patrol Guard Infantry Corporal Ibrahim OGUT fired 2 times (as warning to prevent the UNFICYP soldier from approaching), so 7 bullets were fired in total.
6. THE REASON FOR THE INCIDENT: The GCNG soldier's persistent violation of the Buffer Zone and the Turkish Contact Line despite the verbal warnings and warnings by fire.
7. PERSONNEL INVOLVED IN INCIDENT: The guards of the YILDIRM Guard Post, Infantry Private Kemal GIYINER and Infantry Private Huseyin CUMBUSCU were present during the incident; however, the personnel who fired were Infantry Private Zafer Ali SECKIN, the son of Ahmet, born in 1977 and registered in Magosa, and the other patrol was Corporal Ibrahim OGUT.
8. CONDITION OF THE AFFECTED PERSON: It was observed that the GCNG soldier, who fell down after being shot was taken by ambulance and it was found out that he died.
9. THE IDENTIFICATION OF THE AFFECTED PERSON: GCNG soldier was STELYOS PANAYI.
10. PROCEDURE FOLLOWED AFTER INCIDENT:
a. The GCNG soldier who was shot was taken from the place of incident by ambulance and was brought to the Greek-Cypriot Hospital in Southern Cyprus.
b. Rapid Reaction Squad was sent to the place of incident.
c. All units were informed about the incident, steel vests and steel helmets were distributed especially to all the guards at the contact line, guard posts were reinforced and observation activities were increased.”
(e) A note from the “TRNC” Security Forces Command (1st Infantry Regiment) dated 5 June 1996 concerning “the National Guard soldier who was shot for violating the line of contact”, which reads as follows:
“The incident that took place at 06.30 on 3 June 1996 at the YILDIRIM observation post – (coordinates 31750-93190); located within the area under the control of the 8th Infantry Division of the 1st Infantry Regiment's 3rd Infantry Battalion – during which a GCNG soldier was shot dead, is described below.
1. On the day of the incident a fully equipped GCNG soldier, whose weapon was not visible, came out of the GCNG squad post – which is located 100 metres to the west of the YILDIRIM observation post at the Southern Cyprus Greek Administration's line of contact (coordinates 31750-93100) – and entered the buffer zone. He then waved at two guards at the YILDIRIM observation post and called them by saying “come here brother”. The guards warned the GCNG soldier by shouting in Greek “OXİ” and asked him, in Turkish, Greek and English, to stop. After the Greek Cypriot soldier had entered the buffer zone, one of the guards radioed patrols who at the time were 100 metres away to the north, and asked them to come to the area. One of the guards then walked 10 metres to the west of the YILDIRIM observation post in order to be able to observe the GCNG soldier who, by then, had gone into the river bed and was out of sight. In the meantime, the patrols who came from the communication trenches and who took up positions told the guard to return to his post and shouted at the Greek Cypriot soldier to leave the area.
When the Greek Cypriot crossed the wooden bridge, which had been built on Kanlı River in the 1980s for the exclusive use of the P.F. patrol personnel, and started advancing into the TRNC territory, one of the patrols fired two warning shots, first into the air and then at the ground. When the GCNG soldier ignored the warning shots and continued to advance, he was fired upon. When the Greek Cypriot soldier fell to the ground the patrols thought that he had taken up a position and continued to observe him. The patrols also reported the incident to the duty officer by radio.
2. A P.F. soldier at the UN 60 observation post – which is located at approximately 250 metres to the south of the place of the incident – heard the shots and came out of his observation post and then started looking around. He saw our guard, who had been warned by the patrols, running back to the YILDIRIM observation post. [The P.F. soldier], unable to see the incident from his position, advanced in the direction of the shooting and arrived at the place of the incident. The patrols were concerned about a possible attack by the Greek Cypriot soldier and they warned, first orally and then by firing two warning shots into the air, the P.F. soldier who, by then, had been attempting to cross the wooden bridge. [The patrols] thus prevented the P.F. soldier from approaching the place of the incident. A P.F. officer then arrived in the area.
3. At 06.55, when the ambulance arrived at the scene using the P.F. patrol road, it was established that the Greek Cypriot soldier had been injured. With the permission of a Delegation of Guards and the Commanding Officer who had arrived at the scene in the meantime, [the ambulance] was allowed to take the Greek Cypriot soldier away. This was photographed by the Commanding Officer.
4. The subsequent investigation of the place of the incident and of the relevant personnel [revealed that] the GCNG soldier who crossed into the TRNC soil and who was deemed to be carrying an assault weapon which could have posed a risk to our guards, was warned and then shot in accordance with the existing orders, instructions and rules of engagement.”
(f) Two notes which read as follows:
“THE POSSIBILITY OF THE P.F. GUARD AT THE UN 60 GUARD POST WITNESSING THE INCIDENT
The UN 60 guard post is located at a 250 metre distance from the place of the incident and 200 metres away from the YILDIRIM S.F.C. guard post. 3 metre-long reeds covering the river bed and the trees in the area prevent the place of the incident from being seen from the UN guard post. However, the P.F. guard can see the actions of the Turkish soldiers at the YILDIRIM guard post within a radius of 5 metres. At the time of the incident the Turkish guard at the YILDIRIM guard post advanced 10 metres away from his post in order to observe the GCNG soldier and asked the GCNG soldier to stop and leave the area. When the GCNG soldier insisted in continuing, the patrols who arrived at the scene warned the GCNG soldier and asked the Turkish guard – a corporal – to return to his trench. The guard then returned to his guard post. It might have been possible for the P.F. guard to see the Turkish soldier returning to his guard post. The Turkish soldier in ZİYAD guard post, which is at a distance of 20 metres from the UN 60 guard post, saw the P.F. guard sitting in the UN 60 guard post. Both the P.F. guard and the Turkish guards left their posts after the first shot was fired. The P.F. guard, who is said to have witnessed the incident, then continued to observe the incident. Furthermore, it is not possible to go down to the scene of the incident from the YILDIRIM guard post because the river bed is too steep and is covered with 3 metre-long reeds. Even entering the river bed from another direction would not enable the P.F. guard to see.”
“THE TAKING AWAY OF THE GCNG SOLDIER FROM THE AREA BY THE P.F. PERSONNEL
The incident took place at 06.30. As stated in the UN report, the P.F. guard called for an ambulance only at 6.45 and reported the incident. The P.F. personnel arrived in the area at 06.50 and were given permission to approach the scene of the incident by the duty Turkish officer, commander of the duty [soldiers] and the commander of the Division. The ambulance arrived at 7.01, the GCNG soldier was put in the ambulance immediately and the [ambulance] left the area at 7.05.”
22. The Government drew the attention of the Court to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (hereinafter “the UN Force and Firearms Principles”), adopted on 7 September 1990 at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders. The relevant provisions of this document read as follows:
“Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.”
“Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”
“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
“In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
“Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;
(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;
(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.”
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