ITEMID: 001-112396
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: I. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr I., is an Afghan national, who was born in 1963 and lives in the Netherlands. The President decided not to disclose the applicant’s identity to the public (Rule 47 § 3). He is represented before the Court by Ms H.E. Visscher, a lawyer practising in Dordrecht.
2. The Netherlands Government (“the Government”) are represented by their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 25 September 1999, the applicant together with his spouse and their three children, the latter born between 1986 and 1995, applied for asylum in the Netherlands. On unspecified dates, the applicant’s spouse and children were granted asylum in the Netherlands. On 3 July 2001, a fourth child was born to the applicant and his wife.
5. On 26 September 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), rejected the applicant’s asylum request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. The Minister further decided, although the decision entailed that the applicant was no longer lawfully staying in the Netherlands and obliged to leave the country, that for the time being the applicant would not be expelled to Afghanistan as it could not be excluded that, if returned to Afghanistan, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention.
6. On 17 October 2003 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 4 February 2005, the Regional Court of The Hague sitting in Leeuwarden accepted the appeal, quashed the Minister’s decision of 26 September 2003 and ordered the Minister to take a fresh decision. Although it agreed with the Minister’s decision and pertaining reasoning to hold Article 1F of the 1951 Refugee Convention against the applicant, it also found – on the basis of rulings given on 2 June 2004 and 9 July 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) and noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention – that the Minister should also have examined whether the applicant had established that there was a sustained obstacle based on Article 3 of the Convention for his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete.
7. The applicant’s subsequent appeal to the Administrative Jurisdiction Division was rejected on 20 May 2005. It upheld the impugned judgment of 4 February 2005. No further appeal lay against this ruling.
8. On 5 April 2006, the applicant’s spouse and their children were granted Netherlands citizenship.
9. On 5 February 2008, the Deputy Minister of Justice (Staatssecretaris van Justitie) – the successor to the Minister for Immigration and Integration – took a fresh decision on the applicant’s asylum request. The Deputy Minister again decided to hold Article 1F of the 1951 Refugee Convention against the applicant. As regards Article 3 of the Convention, the Deputy Minister accepted that the applicant would run a real risk of being subjected to treatment prohibited in that provision if, given the current situation there, he were to be removed to Afghanistan. However, this did not automatically imply that on this basis, the applicant should be granted a residence title as this would be contrary to article 3.107 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). This meant in the applicant’s case that he was not eligible for admission to the Netherlands whilst no recourse would be had to the power to remove him to Afghanistan. As regards the question whether the Article 3 obstacle for his removal was of a sustained nature, the Deputy Minister held that the term “sustained” was to be interpreted as entailing a situation in which the alien concerned could not for many years be removed for reasons based on Article 3 without there being any prospects of a change in that situation within a not too long delay. If that were the case, and if resettlement in a third country – despite sufficient efforts to comply with the obligation to leave the Netherlands – was not possible and, in addition, the alien found him/herself in an exceptional situation in the Netherlands, there would be reason for the Deputy Minister to consider whether a continued withholding of a residence title was disproportionate. Noting that, at least until that moment, the applicant had been allowed to stay in the Netherlands, the Deputy Minister concluded that the applicant not yet found himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3. In addition, the Deputy Minister decided to impose an exclusion order (ongewenstverklaring) on the applicant. As to the applicant’s reliance on his right to respect for his family life within the meaning of Article 8 of the Convention in the Netherlands with his spouse and their four children, the Deputy Minister found that the exclusion order entailed an interference with the applicant’s rights under this provision but that the general interest outweighed the applicant’s personal interests. In this context the Deputy Minister considered, inter alia, that there was an objective obstacle standing in the way of family life being enjoyed in Afghanistan, but that no objective obstacles had appeared for the enjoyment of the applicant’s family life in a third country and that this was not altered by the fact that the applicant’s spouse and children had become Netherlands nationals.
10. On 12 February 2008, the applicant filed an objection (bezwaar) with the Deputy Minister against the decision to impose an exclusion order. As this order is immediately enforceable and the objection not having suspensive effect, the applicant also filed a request with the Regional Court of The Hague for the issuance of a provisional measure, i.e. an injunction on his expulsion pending the objection proceedings. On the same date, the applicant also filed an appeal with the Regional Court of The Hague against the decision to reject his asylum request.
11. On 27 May 2008, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Dordrecht granted the applicant’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him.
12. On 14 November 2008 the Deputy Minister rejected the applicant’s objection of 12 February 2008. The Deputy Minister noted that, on the basis of the rulings of 4 February 2005 and 20 May 2005, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that for that reason an exclusion order could be imposed. In this connection, the Deputy Minister pointed out that the Netherlands State attached great importance to the premise that the Netherlands does not become a safe haven for persons in respect of whom there are strong suspicions that they have committed crimes referred to in Article 1F of the 1951 Refugee Convention and that, in order to accomplish this, an exclusion order was imposed on persons against whom this provision had been held. As regards the question whether the Article 3 obstacle opposing the applicant’s removal to Afghanistan was of a sustained nature, the Deputy Minister held that the applicant did not find himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3 and, in this respect referred to a letter sent on 9 June 2008 by the Minister and Deputy Minister of Justice to the Lower House (Tweede Kamer) of Parliament on the application of Article 1F, stating inter alia that the notion of “a great number of years” meant in principle a period of at least ten years. The Deputy Minister further considered that it had not been established that there were no prospects of change in the situation where Article 3 opposed the applicant’s removal to Afghanistan, which country was undergoing a period of transition, comprising a complex reconciliation process which had the active support of the international community. The Deputy Minister lastly rejected the applicant’s arguments based on his rights under Article 8 of the Convention. As regards the question whether the applicant’s family life could only be enjoyed in the Netherlands, the Deputy Minister accepted that, in the current circumstances, the applicant could not return to Afghanistan but did not find it established that this family life could not be enjoyed in a third country. The Deputy Minister concluded that the interests of the applicant and those of his family were of insufficient weight to tip the balance in their favour.
13. On 1 December 2008, the applicant filed an appeal against this decision with the Regional Court of The Hague. By judgment of 20 April 2010, that court, sitting in Dordrecht, rejected the appeal. It held that, barring newly emerged facts or changed circumstances, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final with the ruling given on 20 May 2005 by the Administrative Jurisdiction Division. Referring to the Division’s case-law, it reiterated that under “newly emerged facts or changed circumstances” was to be understood facts or circumstances having occurred after the initial decision, i.c. after 26 September 2003, and which could not and therefore should not have been submitted before that decision was taken and that, even if that condition was fulfilled, such facts or circumstances nevertheless did not warrant a revision of the judicial assessment if it was excluded from the outset that such new submissions or arguments could alter the initial decision. The Regional Court did not find such newly emerged facts or changed circumstances in the applicant’s submissions. It further noted that it was not in dispute that Article 3 of the Convention had, as from the date of the applicant’s asylum request and until the date of the impugned decision, uninterruptedly opposed the applicant’s expulsion to Afghanistan. Noting that fewer than ten years had elapsed between the filing of the asylum request and the taking of the impugned decision, it further accepted that the Deputy Minister did not have to determine the question whether the continued withholding of a residence title to the applicant was disproportionate. It agreed that more than ten years had elapsed at the time of its own examination, but held that its scope for review was limited to the impugned decision. If the applicant wished to obtain an examination of the proportionality of the continued withholding of a residence title, he should file a request for a regular residence permit together with a request for the lifting of the exclusion order. As regards the applicant’s arguments under Article 8 of the Convention, the Regional Court held:
“The appellant correctly points out that the existence of serious reasons for considering that he has committed offences as referred to in Article 1F of the 1951 Refugee Convention does not offer the same degree of certitude about his culpability as a criminal conviction of such crimes. This does not alter the fact that the Deputy Minister’s assumption, as accepted by the Regional Court, is founded on the [contents of the] official country assessment report which, in the opinion of the Administrative Jurisdiction Division, is carried by the underlying materials. As a general, the appellant has further exercised an important function under Dostam. In these circumstances, there exists a rather high degree of certainty that the appellant has committed the acts held against him which belong to the most serious crimes imaginable. In its ruling of 31 October 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] BG3842), the Administrative Jurisdiction Division considered that a person against whom Article 1F has been held by the international community is regarded as a danger to (international) public order and public safety. In the ruling cited the Administrative Jurisdiction Division found that the Deputy Minister, when considering that the aim of the exclusion order is to prevent that an alien against whom Article 1F has been held can obtain protection in the Netherlands – thereby rendering the Netherlands a host state for persons who have committed serious crimes – and to counter residence of that alien in the entire Schengen territory, has on good grounds and with sufficient reasoning adopted the position that interference in the alien’s family life is justified in the interest of public safety and security. The Regional Court concludes that the fact that the appellant has not been criminally convicted does not mean that the Article 1F objection gives insufficient cause for interference in his right to family life.
When taking the impugned decision, the Deputy Minister proceeded on the basis of the existence of objective obstacles to family life being exercised in Afghanistan. The Regional Court sees no ground for holding that the Deputy Minister has incorrectly considered the interest of the appellant and his family to be of less weight than the interests served by the imposition of the exclusion order or that on this point the impugned decision lacks adequate reasoning. The appellant is indeed already for a long time involved in [residency] proceedings during which he has been allowed to stay in the Netherlands, but he has never held any residence title enabling him to exercise family life in the Netherlands. When the impugned decision was taken, his oldest child had come of age, whereas no special relationship of dependency between the appellant and this child has appeared. At that time, the other three children were, respectively, seventeen, thirteen and seven years old. It has not appeared that, if need be, these children could not appeal to their mother and the oldest child for aid and assistance. Moreover, it cannot be ignored that, for as long as the Deputy Minister considers that the appellant’s expulsion to Afghanistan is in breach of Article 3 of the Convention and the appellant takes no concrete steps to meet the obligation placed on him – irrespective of the exclusion order – to leave the Netherlands by actively attempting to obtain admission to another country, the appellant will in fact remain with his wife and children. [His claim] that not a single other country is willing to admit the appellant does not, without more, have to be accepted by the Deputy Minister, the less so as the appellant’s lawyer has stated during the hearing held on 16 February 2010 that persons holding a higher rank than the applicant have been admitted to Germany and that the appellant is examining the possibilities of admission to that country. The Regional Court concludes that the impugned decision does not violate Article 8 of the Convention.”
14. On 16 May 2010, the applicant filed an appeal against this judgment with the Administrative Jurisdiction Division.
15. In a separate judgment, also given on 20 April 2010, the Regional Court of The Hague sitting in Dordrecht declared inadmissible the applicant’s appeal against the Deputy Minister’s decision of 12 February 2008 to reject his asylum request. Referring to a ruling handed down by the Administrative Jurisdiction Division on 6 July 2006 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2006/347), the Regional Court held that the applicant did not have an interest in a determination of that appeal for as long as the exclusion order imposed on him had not been definitely lifted, as this order rendered him ineligible for any kind of residence title. Although a further appeal lay with the Administrative Jurisdiction Division, there is no indication in the case file that the applicant has lodged such an appeal.
16. On 12 October 2010, the Administrative Jurisdiction Division rejected the applicant’s appeal of 16 May 2010 and confirmed the judgment of the Regional Court of The Hague relating to the imposition of the exclusion order. No further appeal lay against this ruling.
17. To date, the applicant has not been prosecuted for the offence defined in article 197 of the Criminal Code (Wetboek van Strafrecht) and he has not made any attempts to resettle in a third country.
18. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.
19. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia,
- he or she is a refugee within the meaning of the 1951 Refugee Convention, or
- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
20. If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which might have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).
21. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.
22. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security and/or that it is in the interests of the international relations of the Netherlands. An exclusion order entails a ban on residing in or visiting the Netherlands.
23. An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect.
24. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 7,600 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case and in line with the general policy rules defined by the Board of Procurators General (College van procureursgeneraal) whether to prosecute or not.
25. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.
26. The implementation as from 1 January 2012 of EU Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) has no consequences in respect of persons on whom an exclusion order has been imposed which has obtained the force of res iudicata. Exclusion orders which are being challenged in administrative appeal proceedings or in respect of which a request for revocation has been filed may be replaced by an entry ban (inreisverbod) within the meaning of the Directive and a decision to that effect can be challenged in administrative appeal proceedings.
27. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences:
- the alien is no longer lawfully residing in the Netherlands;
- he/she is required to leave the Netherlands within four weeks;
- officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands.
28. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking).
29. Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000, an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health of pose a risk for third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth) or the provision of legal assistance to the alien concerned.
30. In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings.
31. A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention.
32. In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. It did however underline the legislator’s apparent wish to limit the size of this group as much as possible. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin,, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete.
33. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but who, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no act aimed at effective removal will be undertaken, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to proceed with his or her effective removal as soon as this no longer entails a risk of treatment contrary to Article 3 in the country of origin or to proceed with removal to a third State willing to accept the person concerned.
34. Eligibility for an eventual temporary regular residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional.
35. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”


ITEMID: 001-79352
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GARYCKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1976 and lives in Sosnowiec.
5. The applicant was arrested by the police on 17 January 2000. On the same day the Katowice Regional Prosecutor charged him with 23 offences (mostly burglaries). On 18 January 2000 the Katowice District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed a number of burglaries. The court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings, having regard to the severity of the anticipated penalty. The detention order was subsequently extended by the Katowice Regional Court (Sąd Okręgowy) on 10 April and 5 July 2000.
6. On 15 September 2000 the prosecution filed a bill of indictment with the Katowice Regional Court. The applicant was charged with armed robbery, robbery and burglary (21 counts). There were 11 defendants in the case, including the applicant. Five of them were remanded in custody. The prosecution asked the court to hear evidence from 34 witnesses. The case file comprised at that time some 32 volumes. The prosecution obtained voluminous evidence, including various expert reports.
7. On 25 September 2000 the Regional Court ordered the applicant’s continued detention until 17 January 2001. It observed, inter alia, that there existed a risk of collusion and that the nature of the offences with which the applicant had been charged justified the continuation of his detention.
8. On 13 November 2000 the Regional Court ordered that the case be joined to that of a certain M.K.
9. On 15 January 2001 the Katowice Regional Court prolonged the applicant’s detention until 15 May 2001. It found that the nature of the offences with which the applicant had been charged, the defendants’ modus operandi and the severity of the likely penalty justified the prolongation of the detention. It further held that there was a risk that the applicant would obstruct the proceedings, given that he had not confessed. The Regional Court found that prolongation of the applicant’s detention was necessary in order to secure the proper conduct of the proceedings for the time needed for the examination of the case. It held that no other measures could prevent the applicant from attempting to interfere with the proceedings or even from going into hiding.
10. The Regional Court listed a hearing for 22 March 2001. However, it had to be cancelled since the applicant and one of the co-defendants had been disorderly and were removed from the courtroom. In addition, one other co-defendant and his counsel failed to appear.
11. On 14 May 2001 the Regional Court ordered that the applicant be held in custody until 15 October 2001, relying on the same grounds as previously. In addition, it observed that the trial court had not yet commenced an examination of the merits due to reasons that were beyond the court’s control, such as the failure of some of the co-accused or their lawyers to appear before the court or the police’s failure to bring the detained co-defendants for trial. The Regional Court noted that the continued detention of the applicant and some of his co-defendants was necessary in order to secure the proper conduct of the proceedings in the case. That decision was upheld on appeal on 13 June 2001.
12. On 8 October 2001 the Regional Court prolonged the applicant’s detention until 17 January 2002. It reiterated the grounds given in its previous decisions. It also noted that all of the 8 hearings scheduled to date had had to be cancelled for various reasons such as: the illness of the trial judge or one of the co-defendants, the unwarranted absence of some of the co-defendants, the absence of the legal-aid lawyer of one of the co-defendants, the fact that one of the lawyers had left the courtroom when the bill of indictment was being read out and the failure of the police to bring the detained co-defendants from prison for trial. The applicant and two other co-defendants appealed against that decision.
13. On 30 October 2001 the Court of Appeal (Sąd Apelacyjny) upheld the decision. The Court of Appeal stated in the relevant part of the reasons for its decision that:
“The appeal is not well-founded. Firstly, it should be stated that, contrary to the defendant’s claims, they committed the offences with which they are charged (Na wstępie stwierdzić należy, wbrew zarzutom oskarżonych, że popełnili oni zarzucane im przestępstwa.)”.
The evidence proving this consists not only of the allegations made by P.S., but also by R.S. who in the official record of the hearing of 16 December 1999 (...) described the persons with whom he had committed burglaries of warehouses in Olkusz and Lubliniec, but later, on 26 February 2000, stated that what he had said was not true; the [trial] court will assess which of these accounts is credible”.
The Court of Appeal further found that there was a real risk that the defendants would obstruct the proceedings by exerting pressure on P.S. (a co-defendant who had incriminated them), given the fact that they had resorted to very aggressive language in their correspondence when referring to P.S. Further, there was a risk of their going into hiding.
14. Two hearings had to be cancelled due to the police’s failure to bring the detained co-defendants from prison (18 October and 8 November 2001).
15. On 22 November 2001 the trial began. However, the Regional Court was only able to hear two defendants. Two subsequent hearings had to be cancelled due to the absence of one of the defence counsel (29 November 2001) and the illness of one of the defence counsel (20 December 2001).
16. On 28 December 2001 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure to the Katowice Court of Appeal for prolongation of the applicant’s detention until 15 June 2002, since the statutory 2-year time-limit of detention pending trial was soon to be exceeded (Article 263 § 3 of the CCP). It emphasised that the grounds originally given for his detention were still valid and that the court was not able to proceed with the hearing of evidence due to reasons that could not be attributed to the court. It noted that out of 13 hearings scheduled to date 12 had had to be cancelled. In addition to the reasons specified in the decision of 8 October 2001, the Regional Court also mentioned the illness of one of the defence counsel and the police’s failure to bring the detained co-defendants from prison (on two occasions). It also observed that the continued detention of the applicant was necessary in order to secure the proper conduct of the trial and that no other measures would prevent the applicant and his co-accused from obstructing the proceedings or going into hiding.
17. On 9 January 2002 the Court of Appeal granted the Regional Court’s application. In addition to the reasons previously given, it held that the case was particularly complex. It also emphasised that the trial court should take all necessary measures to organise the proceedings in a diligent manner so as to hold hearings at reasonable intervals and terminate the trial by 15 June 2002. The applicant appealed against that decision, but to no avail.
18. On 24 January 2002 the applicant requested the trial court to lift his detention on the ground that it entailed a difficult financial situation for his wife and child. On 11 March 2002 the Regional Court refused that request, having regard, inter alia, to the report prepared by a court officer. The applicant’s repeated request to that effect was refused on 10 June 2002.
19. On 20 May 2002 the Regional Court made another application to the Katowice Court of Appeal, requesting an extension of the applicant’s detention until 1 October 2002. It stressed that, despite some progress in the trial (all the co-defendants and 23 out of 34 witnesses called by the prosecution had been heard), there were still prosecution witnesses (11) and witnesses called by the co-accused (20) to be heard. On 29 May 2002 the Court of Appeal granted that application.
20. The trial court held hearings on the following dates: 31 January, 15 and 21 March, 11 and 25 April, 16 May 2002, 3 and 27 June, 31 July, 29 August and 12 September 2002. Four hearings were cancelled for the following reasons: the absence of some of the co-defendants and defence counsel (24 January 2002); the trial judge’s illness (22 February 2002); the failure of one of the co-defendants to appear (26 September 2002) and the failure of one of the defence counsel to appear (17 October 2002).
21. On 16 September 2002 the trial court made yet another application to the Court of Appeal for an extension of the applicant’s detention until 4 November 2002. It referred to the necessity to hear witnesses called by the co-defendants and to obtain an expert report as to the mental health of one of the co-defendants. On 25 September 2002 the Court of Appeal granted that application. Another similar application of the trial court of 18 October 2002 was granted by the Court of Appeal on 30 October 2002. The latter court considered that the proceedings had not been terminated due to reasons beyond the trial court’s control. The applicant’s detention was prolonged until 20 December 2002.
22. In the course of the proceedings the applicant appealed unsuccessfully against several decisions extending his detention.
23. On 3 December 2002 the Regional Court held the last hearing and closed the trial. On 10 December 2002 it gave judgment. The applicant was convicted of 2 counts of robbery and 14 counts of burglary and sentenced to 9 years’ imprisonment. He was acquitted of 7 counts of burglary.
24. The applicant appealed against the first-instance judgment. On 23 October 2003 the Katowice Court of Appeal upheld the judgment of the Regional Court in respect of the applicant. Throughout the proceedings before the trial court and the Court of Appeal the applicant was represented by a legal-aid counsel.
25. On 16 January 2004, relying on Article 78 of the CCP, the applicant requested the Court of Appeal to appoint a legal-aid counsel for him with a view to lodging a cassation appeal. On 29 March 2004 the court granted that request and appointed the same counsel who had represented the applicant at the earlier stages of the proceedings to prepare a cassation appeal. By a letter dated 14 April 2004 the counsel informed the Court of Appeal that, having analysed the case file, he had not found any grounds on which a cassation appeal could be based.
26. On 21 April 2004 the Court of Appeal informed the applicant about the legal-aid counsel’s refusal and that no other legal-aid counsel would be appointed for him. Furthermore, it informed the applicant that he had 30 days from the day following the receipt of that letter to lodge a cassation appeal by a counsel of his own choosing. It appears that the applicant did not lodge a cassation appeal with the Supreme Court (Sąd Najwyższy).
27. On 21 October 2002 the Court’s Registry sent a letter to the applicant acknowledging the receipt of his letter of 15 September 2002.
It appears that that letter was delivered to the applicant after having been controlled by the authorities. The Court’s envelope bears two stamps that read “Katowice Detention Centre. Received 25 October 2002” and “Katowice Detention Centre. Received 4 November 2002” (Areszt Śledczy w Katowicach. wpł. 25 PAŹ 2002 and wpł. 4 LIS. 2002). There were also two hand-written notes “R[egional] C[ourt] K[atowi]ce XVI K” (SO K-ce) and “return after censorship” (zwrot po cenzurze).
28. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
29. Article 42 § 3 of the Constitution provides:
“Everyone shall be presumed innocent until proved guilty in a final decision of a court of law.”
A similar principle is laid down in Article 5 § 1 of the Code of Criminal Procedure.
30. Pursuant to Article 78 of the Code of Criminal Procedure a defendant who does not have a defence counsel of his own choosing may request the trial court to appoint him a legal aid counsel if he had duly proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-2


ITEMID: 001-99556
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HATZIGEORGIOU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, all Cypriot nationals of Greek-Cypriot origin, are named as:
1. Mr Zacharias Hatzigeorgiou, born in 1962;
2. Mrs Maria Hatzigeorgiou, born in 1936, is the mother of the other applicants and administrator of the property of her missing husband (see below);
3. Mrs Elena Ioannou-Hatzigeorgiou, born in 1958;
4. Mr Sotiris Hatzigeorgiou, born in 1964;
5. Mr Andreas Hatzigeorgiou, born in 1966;
6. Ms Sofia Hatzigeorgiou, born in 1973.
The application was stated to be brought by the applicants, in their own capacity and on behalf of Loizos Hatzigeorgiou-Poirazis, their husband and father respectively, and Georgios Loizou Hatzigeorgiou, their son and brother respectively, who have been missing since August 1974. The applicants are the heirs to the property of Loizos Hatzigeorgiou-Poirazis. Applicants nos. 1, 2, 3, 5 and 6 are living in Nicosia and applicant no. 4 is living in Paphos.
They were represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
All the applicants and the missing persons were born in the village of Strogillos in the District of Famagusta which had inhabitants of both Greek- Cypriot and Turkish-Cypriot origin. The applicants stated that until 14 August 1974 they were all living together in the village.
After the intervention by the Turkish armed forces in July 1974 the applicants alleged that they remained in their village following reassurances by fellow Turkish-Cypriot villagers and the head of the latter's community in the village that they would protect them. Subsequently, on 14 August 1974 the Turkish armed forces took over the village and arrested the applicants. The applicants claimed that on 15 August 1974 Loizos Hatzigeorgiou-Poirazis, who was 43 years old at the time and Georgos Loizou Hatzigeorgiou, 18 at the time, were taken by the Turkish armed forces and/or Turkish Cypriots under their command along with other men of Greek-Cypriot origin in the village and that they were told that the villagers had been taken to Sinda for interrogation. The applicants stated that they were detained in a house, with other women and children, with armed guards outside and that they were not allowed to go home, or to take care of their animals on the farm or their property. Then they were put onto trucks and taken through various villages, subjected en route to abuse by mobs who were spitting, shouting abuse and throwing objects at them. On 26 August 1984 the applicants stated that they were forced to abandon their home, property and village and flee to southern Cyprus.
Since 15 August 1974 the applicants have never seen their husband/father and son/brother again and they claimed that Turkey refused to give any information about their whereabouts.
These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. In 1981, the United Nations Committee on Missing Person (“CMP”) was set up to look into cases of persons reported missing in the intercommunal fighting as well as the events of July 1974 and afterwards (for further details on the CMP, see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 85-88, ECHR 2009...).
The Government stated, inter alia, that it had no knowledge of the missing persons and that the applicants had failed to initiate any inquiry about their missing relatives.


ITEMID: 001-23268
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The first applicant, Fateh Rechachi, is an Algerian national, born in 1962. The second applicant, Hocine Ben Abdelhafid, is a British national, born in 1964. Both live in London. They are represented before the Court by Birnberg Peirce and Partners, a firm of solicitors practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant, a paraplegic, is in a wheelchair. He has a pending asylum application in the United Kingdom. On the morning of 12 May 1998 the police arrested him pursuant to the Prevention of Terrorism (Temporary Provisions) Act 1989 (“PTA”). He was detained in the police station until 16 May 1998 when he was charged under sections 16A (possession of articles for suspected terrorist purposes) and 16B (collection of information likely to be useful for terrorist purposes) of the PTA and remanded in custody by the Magistrates’ Court. He was held in the prison medical wing. Numerous bail applications were refused until he was released on bail on 11 December 1998. He claims that he suffered ill-health during detention, that the facilities in the prison were not adapted for paraplegics and that he developed urinary infections because he was unable to maintain the personal hygiene necessary for the catheter which was in place.
The second applicant was also arrested on 12 May 1998 under the PTA. After detention in police custody, he too was charged with offences contrary to sections 16A and 16B of the PTA and remanded in custody by a Magistrates’ Court. He was released on 23 October 1998 when the charges against him were dropped.
On 24 May 1999 an article appeared in a legal journal (Criminal Law Week) suggesting that sections 16A and 16B of the PTA had lapsed on 22 March 1998. On 22 June 1999 the criminal proceedings against the first applicant were formally discontinued on the basis that the offences of which he had been charged were no longer part of English law.
On 23 June 1999 the Home Secretary made a statement to Parliament confirming that the offences in question had indeed lapsed from English law. He said that this had escaped the notice of the draftsman, Ministers (including himself), Parliament and the legal profession. The matter had come to light because of the relevant legal article published in May 1999 and, as soon as the article had been brought to his attention, he had taken legal advice. Once the status of the sections had been clarified, the police had been advised not to rely on them. Certain persons had been erroneously charged on the basis of those lapsed sections and certain steps had been taken to resolve those cases. He referred to the first applicant’s case (without naming him), noting that the indictment had been quashed.
The applicants applied for compensation for the time spent in detention under the ex gratia compensation scheme operated by the Home Office.
In a letter of 4 April 2002 the applicants’ representative informed the Court that the Home Secretary had made offers of interim ex gratia payments. The applicants had also made a claim for damages against the Commissioner for the Metropolitan Police for false imprisonment, assault and battery and malicious prosecution. The Commissioner had made a pre-issue offer and the applicants had made a counter-offer which was under consideration by the Commissioner.
The applicants were requested by the Court, by letter of 15 April 2002, to confirm whether they were considering a settlement or withdrawal of the application before the Court. No response was received.
By letter dated 28 May 2002 the Government noted that it was for the Home Secretary to determine eligibility for the ex gratia compensation scheme and he considered that the applicants qualified. The amounts to be awarded would be determined by an independent assessor. While the final awards had not yet been determined, each applicant had been offered an interim payment of 50,000 pounds sterling (GBP). The first applicant had not yet accepted this interim award whereas the second applicant had.
By letter of 16 April 2003 the Court requested the applicants to provide full information to the Court on the current position concerning ex gratia compensation and any civil proceedings.
By facsimile dated 23 April 2003 the applicants’ representative confirmed an interim ex gratia payment of GBP 50,000 to the first applicant by the Home Secretary and that his final award was being currently assessed. The Home Secretary had made a final ex gratia award of GBP 75,000 to the second applicant. No admission of liability had been made in either case.
The applicants’ representative further confirmed that the applicants had sent a “pre-action” letter to the Commissioner for the Metropolitan Police claiming false imprisonment, assault, battery and malicious prosecution. The threatened civil proceedings had not issued since the Commissioner had paid each applicant GBP 15,000 in settlement. As to the first applicant, the Commissioner acknowledged that he may well have been unable to prove the lawfulness of the arrest and that the detention following his being charged had been on the basis of lapsed legislation. He expressed regret for unlawfully arresting and detaining the first applicant. With respect to the second applicant, the Commissioner contended that he would have been able to prove the lawfulness of the arrest but acknowledged that the detention following his being charged had been on the basis of lapsed legislation and was therefore unlawful.
The PTA was first enacted in 1989. It is temporary legislation which lapses after 12 months unless renewed. The procedure for such renewal involves laying before Parliament a statutory instrument which is subject to affirmative resolution of both Houses of Parliament.
The PTA had 5 parts (I, II, II IV and V) and section 82 of the Criminal Justice and Public Order Act 1994 inserted a new part (IV.A) which included sections 16A and 16B. Between 1995 and 1997, Part IV.A was continued in force, together with the remaining provisions of the PTA, by statutory instruments coming into force on 22 March of each year.
The 1997 Order expired on 22 March 1998. On that date the Prevention of Terrorism (Temporary Provisions) Act 1989 (Partial Continuance) Order came into force. However, Parts II and IV.A had been omitted from that renewal Order and, therefore, lapsed on 22 March 1998.
The Home Office operates a discretionary scheme which provides for the ex gratia payment of compensation, upon application, to people who have spent time in custody following a wrongful charge or conviction. The Home Secretary decides whether an individual qualifies for the scheme and an independent assessor calculates the level of ex gratia compensation required.


ITEMID: 001-83788
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2007
DOCNAME: CASE OF DICKSON v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 12;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Javier Borrego Borrego;John Hedigan;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi
TEXT: 9. The applicants were born in 1972 and 1958 respectively. The first applicant is in prison and the second applicant lives in Hull.
10. In 1994 the first applicant was convicted of murder (kicking a drunken man to death) and sentenced to life imprisonment with a tariff of fifteen years. His earliest expected release date is 2009. He has no children.
11. In 1999 he met the second applicant, while she was also imprisoned, through a prison pen-pal network. She has since been released. In 2001 the applicants married. The second applicant already had three children from other relationships.
12. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. They relied on the length of their relationship and the fact that, given the first applicant’s earliest release date and the second applicant’s age, it was unlikely that they would be able to have a child together without the use of artificial insemination facilities.
13. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the Policy”):
“Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations:
– whether the provision of artificial insemination facilities is the only means by which conception is likely to occur
– whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent
– whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination
– whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release
– whether there is any evidence to suggest that the couple’s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother
– whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.”
He then gave his reasons for refusal in the present case:
“... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release. Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small. It is noted that Mrs Dickson has three children from an earlier relationship. In the light of your wife’s age, the Minister has looked with very great care at both you and your wife’s circumstances, ...
The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially. He also recognises the commitment which you and your wife have shown to one another. However, he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life. A reasoned and objective assessment cannot be made as to whether your relationship will subsist after your release.
Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived. In addition, there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived. It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years.
While recognising the progress which you have made in addressing your offending behaviour, the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour, the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment. It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison.”
14. The applicants sought leave to apply for judicial review of the Secretary of State’s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies (application no. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal.
15. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533. He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips, Master of the Rolls, in the Mellor case (see paragraphs 23-26 below) and commented:
“... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2 ...
Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State’s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...”
He then noted that on occasions the Secretary of State had “dis-applied” the Policy when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances.
16. Auld LJ then applied the Policy to the present case:
“To the extent that [the applicants have] suggested that [the] Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State’s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.”
17. The other judges also relied on the judgment in Mellor. Mance LJ said the following:
“The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v. the United Kingdom [no. 8186/78, Commission’s report of 10 July 1980, DR 24, pp. 81-82, §§ 61-62], also recognised the potential relevance of more general considerations of public interest.”
18. On 19 December 2006 the first applicant was transferred to the open side of another prison as a Category D prisoner. In principle, he was eligible for unescorted home leave after six months should he retain his Category D status (Rule 9 of the Prison Rules 1999, as implemented by Chapter 4.3 – “Temporary Release for Life Sentence Prisoners” – of Prison Service Order 6300).
19. The Secretary of State is empowered to make rules for the management of prisons by section 47 of the Prison Act 1952, the relevant parts of which provide as follows:
“The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein ...”
20. The relevant rules are the Prison Rules 1999 (SI 1999 No. 728). Rule 4 provides as follows:
“Outside Contacts
(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.
(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”
21. The Policy was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years’ imprisonment to serve. His wife was 25 years old. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case.
22. They sought leave to apply for judicial review of the Policy itself, rather than its application to their case, arguing that it was an unjustified interference with their Article 8 rights. They distinguished the Policy from that concerning conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The government argued that the Policy was justified in that (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single-parent families. The High Court refused leave and the applicants appealed.
23. The Court of Appeal (Lord Phillips delivering the main judgment) noted that the Secretary of State’s decision pre-dated the incorporation of the Convention into English law and continued:
“It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant’s case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either.”
24. Having examined relevant Commission jurisprudence (no. 6564/74, Commission decision of 21 May 1975, Decisions and Reports (DR) 2, p. 105; no. 8166/78, Commission decision of 3 October 1978, DR 13, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission’s report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission’s report of 10 July 1980, DR 24, p. 72; and E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 1997, DR 91-A, p. 61), Lord Phillips summarised five Convention principles he considered thereby established:
“(i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights.
(ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12.
(iii) This restriction is ordinarily justifiable under the provisions of Article 8(2).
(iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right.
(v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.”
25. Lord Phillips went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances.
As to the first justification, he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and, indeed, that that statement did no more than restate the Policy in that it indicated that it was a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”.
On the second justification, he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison. Lord Phillips agreed that public perception was a legitimate element of penal policy:
“Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. ... When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.”
As regards the third justification which concerned the alleged disadvantage of single-parent families, he commented:
“I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.”
26. Lord Phillips then concluded:
“For those reasons [the Mellors] failed to make out [the] case that the [Policy] ... is irrational. [The Mellors] accepted that there were in this case no exceptional circumstances, and [they were] right to do so. It follows that the question of whether each of the six general considerations set out in [the Secretary of State’s] letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.
For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.”
27. Responsibility for making artificial insemination arrangements is with the health-care department in the relevant prison in consultation with the local primary care trust. Since the level of health-care provision varies from prison to prison, it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose. The prisoner would be expected to meet any costs incurred.
28. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe’s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release.
29. Article 10(3) of the International Covenant on Civil and Political Rights (“the ICCPR”) provides that the “penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. The General Comment of the Human Rights Committee on Article 10 further states that “no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner”.
30. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles:
“57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.”
31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.
The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that:
“The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.”
The latest version of those Rules adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with three principles:
“Rule 2: Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
...
Rule 5: Life in prison shall approximate as closely as possible the positive aspects of life in the community.
Rule 6: All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”
The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems – “the CDPC”) noted that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights: in fact restrictions should be as few as possible. Rule 5, the commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.
32. The first section of Part VIII of the 2006 Rules is entitled “Objective of the regime for sentenced prisoners” and provides, inter alia:
“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”
In these respects, the CDPC commentary explains that Rule 102:
“... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism. ...
The new Rule is in line with the requirements of key international instruments including Article 10(3) of the [ICCPR], ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term, “rehabilitation”, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives. In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.”
33. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community.
34. The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences.
35. The preamble to Recommendation (2003)23 on the management by prison administrations of life-sentence and other long-term prisoners provides that:
“ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other;”
The aims of the management of long-term prisoners in paragraph 2 of the Recommendation included the following:
“– to ensure that prisons are safe and secure places for these prisoners ...;
– to counteract the damaging effects of life and long-term imprisonment;
– to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.”
The recommendation also outlined five linked principles (paragraphs 38) for the management of long-term prisoners:
– account to be taken of the personal characteristics of prisoners (individualisation principle);
– prison life to be arranged so as to approximate as closely as possible to the realities of life in the community (normalisation principle);
– the opportunity to be accorded to exercise personal responsibility in daily prison life (responsibility principle);
– a clear distinction should be made between the risks posed by life and long-term prisoners to themselves, to the external community, to other prisoners and to those working or visiting the prison (security and safety principle);
– prisoners should not be segregated on the basis of their sentence (nonsegregation principle); and
– the planning of an individual prisoner’s long-term sentence should aim at securing progressive movement through the prison system (progression principle).
The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system “from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community”. There should also be participation in prison activities that “increase the chances of a successful resettlement after release” and conditions and supervision measures that are “conducive to a law-abiding life and adjustment in the community after conditional release”.
36. The second relevant Committee of Ministers’ recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that “research has shown that detention often has adverse effects and fails to rehabilitate offenders”. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as:
“– the payment of compensation or the making of reparation to victims;
– entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime;
– working or following some other approved occupational activity, for instance, education or vocational training;
– participation in personal development programmes; and
– a prohibition on residing in, or visiting, certain places.”
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