ITEMID: 001-58107
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF PAPAGEORGIOU v. GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (six month period);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Not necessary to examine Art. 13+6-1;Non-pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: C. Russo;N. Valticos
TEXT: 6. On 23 December 1987 Mr Papageorgiou and 109 other persons brought an action in the Athens District Court (Irinodikio) against their employer, the Public Electricity Company (Dimossia Epikhirissi Ilektrismou, “the DEI”), to recover the sum of 268,800 drachmas (GRD). That was the amount which the DEI, relying on the provisions of Law no. 1483/1984, had deducted from their salaries between 1 January 1982 and 31 December 1987 for the benefit of the Manpower Employment Organisation (Organismos Apaskholissis Ergatikou Dinamikou, “the OAED”). The hearing before the District Court was set down for 8 February 1988.
7. On 4 February 1988 the DEI applied to the District Court for leave to serve a third-party notice (anakinossi dikis meta prosepiklisseos is paremvassi) on the OAED, arguing in particular that if it lost the case, it would be entitled to an indemnity from the OAED, for whose benefit it had deducted the sums claimed. A hearing was set down for 16 March 1988.
8. On 8 February 1988 the hearing of the first action was adjourned to 16 March 1988 so that the two actions could be joined. However, the hearing on 16 March 1988 was cancelled because the parties’ lawyers failed to appear.
9. As he now wished to continue on his own with the action brought on 23 December 1987, the applicant applied to the District Court on 26 October 1988 for a new hearing, which was set down for 14 December 1988.
10. On 12 December 1988 the DEI made a further application to the District Court for leave to serve a third-party notice on the OAED. A hearing was set down for 7 February 1989.
11. On 14 December 1988 the hearing was adjourned to 7 February 1989 so that the two actions could be joined.
12. In a judgment (no. 749/1989) of 20 April 1989 the District Court allowed the applicant’s claim in part and ordered the DEI to pay him the sum of GRD 190,383; in addition, it ordered the OAED to repay that amount to the DEI.
13. On 26 June and 10 July 1989 respectively the DEI and the OAED appealed to the Athens Court of First Instance (Polymeles protodikio) against that judgment. On an application by the applicant, a hearing was set down for 12 January 1990.
14. On that date the Court of First Instance noted that the applicant had himself obtained an expedited hearing, but had not served a summons on the DEI to attend because he had considered that the OAED’s appeal was inadmissible as it had also been brought against the DEI. It decided to declare the appeal against the DEI admissible and to adjourn the hearing of the appeal concerning Mr Papageorgiou in order to avoid the risk of delivering contradictory decisions (judgment no. 2371/1990).
15. On 3 April 1990 the applicant, having served summonses on both the OAED and the DEI, applied for a new hearing before the Court of First Instance, which was held on 28 September 1990.
16. In a judgment (no. 9189/1990) of 30 November 1990 the Court of First Instance reduced the amount awarded to the applicant by the District Court to GRD117,213.
17. On 13 March 1991 the DEI appealed on points of law; the OAED intervened in the appeal proceedings in order to lend support to the DEI’s arguments. In one of its grounds of appeal the DEI challenged the Court of First Instance’s jurisdiction; in its view, the issue over the obligation to make contributions was a matter of insurance law and therefore had to be decided by the administrative courts.
However, the hearing initially set down for 29 September 1992 had to be adjourned because of a strike by members of the Athens Bar. The strike lasted until April 1993.
18. On 21 October 1992 the applicant applied for a new hearing, which was set down for 19 October 1993.
19. On 19 November 1993 the Court of Cassation, relying on the provisions of section 26 of Law no. 2020/1992 – adopted by Parliament on 28 February 1992 (see paragraph 25 below) – set aside the judgment appealed against on the following grounds:
“... 3. It results from the principle of separation of powers ... that the legislature is not precluded from abolishing by means of new legal rules – through extinguishment – rights acquired under legal rules that were in force in the past, even if those rights have been recognised by final court decisions. This, however, is not the case with new rules which are not of general application and which consequently infringe the principle of equality (Article 4 § 1 of the Constitution) or the right of property (Article 17 of the Constitution); in such circumstances the courts may not give effect to such rules ... In the instant case, after the judgment under appeal had been delivered (30.11.1990) and the appeal on points of law lodged (14.3.1991), Law no. 2020 of 28 February 1992 was passed, section 26 of which provides ... In the judgment under appeal (no. 9189/1990) the Court of First Instance, sitting as a court of appeal, found that [the applicant] was a permanent employee of the DEI, which had given him a contract of employment and paid him a monthly salary; between 8 October 1984 and 31 December 1987 the relevant organs of the DEI had made deductions for the benefit of the OAED from his monthly income, which, as the additional insurance of DEI employees was incompatible with the aforementioned insurance branches ..., were illegal. The deductions comprised 1% of his income for unemployment benefit and 1% for the DLOEM, making a total of 117,213 drachmas that was paid to the OAED. [The Court of First Instance] subsequently awarded that amount to the [applicant]. However, after the entry into force of section 26 (2) of Law no. 2020/1992, which is not contrary to the provisions of Articles 4 and 17 of the Constitution, the judgment under appeal must be set aside and the proceedings struck out ...”
20. It would appear that this judgment was not served on the applicant, who claims that he became aware of it on 22 December 1993.
21. Article 74 § 5 of the Constitution provides:
“A government or private member’s bill containing provisions unrelated to the principal subject matter of the bill shall not be put before Parliament.
No additional provision or amendment shall be put before Parliament if it is unrelated to the principal subject matter of a government or private member’s bill.
Disputes will be referred to the Chamber of Deputies for resolution.”
22. The relevant provisions of the Code of Civil Procedure read as follows:
“The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise.”
“1. The parties shall be responsible for the service of judgments.
2. Where a judgment is not final, it shall be deemed to have been served if the parties, their legal representatives ... or their lawyers were present at the hearing.”
23. Section 18 (4) of Law no. 1346 of 13/14 April 1983 reads as follows:
“Employees subject to the provisions of Legislative Decree no. 3868/1958 ... who receive a monthly salary are not entitled to the aforementioned family benefits if and for so long as they are receiving from their employer – pursuant to statute, a collective agreement, an arbitration award, company regulations or any other provision ... –benefit for dependent children exceeding the amount of benefit paid by the OAED ...”
24. Contributions to the OAED are dealt with in section 20 of Law no. 1483/1984, which provides:
“(1) Employers’ and employees’ contributions to the OAED ... constitute welfare deductions for the benefit of the aforementioned bodies, which perform a welfare role, and the contributions shall continue to be payable notwithstanding any entitlement of beneficiaries who are employees to similar benefit from their employers or other institutions.
(2) Under no circumstances shall any claim be made for repayment of any contributions referred to in the preceding paragraph that have been paid to the OAED … before publication of this Law. Any pending proceedings concerning claims for repayment of such contributions shall be struck out.
...”
25. On 28 February 1992 Parliament enacted a law (no. 2020/1992) entitled “rules on the special tax on the consumption of petroleum products and other provisions”. Section 26 of that Law provides:
“(1) Employers’ and employees’ contributions in the insurance branches under the responsibility of the OAED ... shall be deemed to be welfare deductions for the benefit of those bodies and shall be payable notwithstanding any entitlement of the insured to similar benefits from their employers or other institutions.
(2) No claims shall be made for repayment of contributions referred to in the preceding paragraph that have been paid to the OAED ... before publication of this Law and any claim relating to such contributions shall be extinguished and any claim pending in any court for the repayment of such contributions shall be struck out.
...”
It was indicated in the explanatory report that the purpose of the provision was to settle the issue whether contributions to the OAED (in particular those relating to benefit for dependent children) were “welfare deductions”, that is to say contributions payable by those liable to make them even where the risk covered by the insurance would never materialise.
26. In two judgments of 30 June 1988 (no. 1288/1988) and 17 December 1990 (no. 1989/1990), respectively concerning disputes between the Greek Post Office (“the ELTA”) and its employees and the Greek Railways Board (“the OSE”) and its employees, the Court of Cassation clarified the meaning of section 20 of Law no. 1483/1984 and especially of the words “continue to be payable” contained in section 20 (1). At the same time it upheld the decisions of the courts below in which the OSE and the ELTA had been ordered to pay compensation to some of their employees for the deductions from their salaries made for the benefit of the OAED.
More particularly, in its judgment of 30 June 1988, the Court of Cassation said:
“...
It is apparent from the aforementioned provisions and from the fact that ELTA staff are entitled to a State pension and to medical cover ..., that it is inconceivable and not intended by the legislature that staff should receive additional cover from the OAED for unemployment benefit and family benefit ... Before Law no. 1483/1984 was adopted and as the full court of the Court of Cassation held in its judgment no. 403/1981, the ELTA’s employees had no obligation under the Law to make contributions to the OAED; section 20 of the aforementioned Law – as indicated by the words ‘continue to be payable’ – does not impose any such obligation on employees. Consequently, that section does not apply where there is no obligation to make contributions, which is the position with the ELTA’s staff ...”
In its judgment of 12 December 1990 the Court of Cassation said that no obligation to make contributions was created by the entry into force of section 20 of Law no. 1483/1984, as it was provided that the contributions continued to be payable, which meant that where no contributions had been payable previously, the aforementioned Law did not create such an obligation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5215
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: POWELL v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are husband and wife and are both British citizens. The first applicant was born in 1953 and the second applicant in 1955. The applicants live in Swansea, United Kingdom. They are represented before the Court by Mrs N. Mole, a lawyer working with the Aire Centre, London.
A.
s, may be summarised as follows.
The death of Robert Powell
On 5 December 1989 the applicants’ 10-year-old son, Robert, was admitted to Morriston hospital after persistent spells of severe abdominal cramps and vomiting. The paediatrician in charge of his care, Dr Forbes, suspected that Robert suffered from adrenal insufficiency (Addison’s disease), and made a written report to the child’s general practitioners at Ystradgynlais Health Centre, stating that he required an ACTH Stimulation Test to confirm the diagnosis. The test was not carried out. Robert was discharged from the hospital on 9 December 1989. Neither the Health Authority nor Robert’s general practitioners re-called Robert to hospital for the ACTH Stimulation Test following his discharge. Robert’s parents were never informed that the doctors suspected Addison’s disease.
After his discharge from hospital, Robert remained unwell throughout December 1989. He did not seem to recover or to regain his previously lost weight until New Year 1990. The applicants then considered that Robert had made a full recovery.
On 18 January 1990 Robert went to see Dr Forbes at Morriston Hospital for a followup examination. Following this appointment, Dr Forbes wrote to Robert’s general practitioners at Ystradgynlais Health Centre instructing them to refer Robert immediately if he had a recurrence of vomiting and/or abdominal pain.
In early April 1990 Robert developed a sore throat, a pain in his jaw, and became generally unwell. Thereafter, as Robert’s condition rapidly declined, the applicants sought medical treatment for their son on seven separate occasions from five doctors at the Health Centre. The doctors failed to communicate adequately with one another regarding Robert’s medical history. Each time the applicants sought medical treatment, the applicants were sent home and/or advised that there was nothing to worry about and/or were given ineffective and/or inappropriate treatment.
On 2 April 1990 the first applicant brought Robert to see Dr E. Hughes at the Ystradgynlais Health Centre. Dr Hughes could not find anything wrong with Robert and advised the father not to worry.
On 6 April 1990 the first applicant brought Robert to see Dr Flower. Dr Flower could not find anything wrong with Robert and advised the father not to worry.
Robert’s condition continued to deteriorate. His appetite was poor. He was weak and listless. On 10 April 1990 Robert vomited while eating a meal.
On 11 April 1990 the applicants again took Robert to the Ystradgynlais Health Centre. Robert was now so weak that he had to be carried to and from the car. While in the waiting room, Robert could not sit up. The first applicant gave Dr Williams a full history of Robert’s illness as he knew it. This included the admission to the hospital the previous December, the vomiting in December, the vomiting on 10 April, Robert’s current symptoms and the consultations with Drs Hughes and Flower. Dr Williams looked through Robert’s medical records in the first applicant’s presence. He prescribed Dioralyte for vomiting. Dr Williams told the first applicant that he felt Robert should be referred back to Dr Forbes. Dr Williams dictated a letter of referral later that day, but the letter was not typed for several days and was never sent because of Robert’s intervening death.
On 15 April 1990 the first applicant took Robert to see Dr Boladz at Community Hospital. The Powells gave Dr Boladz the full history of Robert’s illness as they knew it. The first applicant told him that Robert’s condition had worsened since seeing Dr Williams, and that Robert was now so weak that he could not walk without assistance. Dr Boladz examined Robert, found he had a throat infection, and prescribed amoxycillin. He suggested that the Powells should take Robert for blood tests at the Health Centre. The first applicant remembers seeing Dr Boladz read a letter from Dr Forbes dated 18 January 1990.
On 16 April 1990 Robert vomited again. The Powells requested a home visit. When Dr K. Hughes arrived, the first applicant gave him a full history of Robert’s illness as he knew it. Dr Hughes suggested that the Powells postpone the blood test recommended by Dr Boladz until 18 April 1990 because of a Bank Holiday. He said that if Robert vomited or deteriorated further he should be admitted to hospital.
On 17 April 1990, the applicants requested a second doctor’s home visit after Robert collapsed on the bathroom floor, fell temporarily unconscious, and developed blue-tinted lips and dilated pupils. Dr Flower, who performed the home visit, insisted that there was no cause for concern and refused to admit the child to hospital. The Powells called Dr Flower to the home later that day because of Robert’s deteriorating condition. Dr Flower seemed very annoyed when she arrived at having been called out again. On this occasion, she agreed to refer him to hospital, but refused to call an ambulance to take him.
The applicants rushed Robert to the hospital themselves. When Robert arrived at the hospital, there was immediately a panic over his condition. The second applicant nearly fainted, and she was assisted from the room. Robert was put on a life-support machine in intensive care. Thereafter, he experienced two cardiac arrests. Robert died that evening.
It was later determined that Robert had died of Addison’s disease, a rare condition arising from adrenal insufficiency, which is potentially fatal if untreated, but which is susceptible to treatment if diagnosed in time.
The refusal to conduct an inquest
Shortly after Robert’s death, the first applicant informed the West Glamorgan County Coroner’s Office that he believed his son died as the result of medical malpractice. Despite his allegations no inquest was performed, and no mention was made of the allegations in the post-mortem report. When the first applicant subsequently asked the Coroner’s Office to explain the decision not to hold an inquest, he was told that no inquest was held because Addison’s disease is a natural cause of death.
Alleged falsification of medical records by Robert Powell’s general practitioners
On 20 April and 23 April 1990, Dr Hughes visited the Powells at home, bringing with him Robert’s complete medical records and his general practitioner records. On 23 April 1990 the first applicant arranged for the Reverend D.G. Thomas to witness independently the information in the records, and to make a note of their contents.
While examining the medical records, Reverend Thomas’ attention was drawn to a document headed: “Clinical Summary Sheet (hereafter CSS/1).” Dr Forbes prepared this document during or soon after Robert’s hospitalisation in December 1989. It was sent to Robert’s general practitioner, Dr Boladz, at Ystradgynlais Health Centre. CSS/1 contained a note in typescript on its reverse side. The Reverend Thomas recalled that the note, which was headed “information,” contained the following details:
(i) that the Deceased needed an ACTH test (test for Addison’s disease)
(ii) that the Deceased’s parents had been so informed
(iii) that the Deceased suffered from hormonal imbalance
(iv) that Addison’s disease was being considered
The Powells were shocked to learn that doctors had suspected Addison’s disease in December 1989, and that none of the six doctors who examined Robert had communicated this fact to them. On 30 April 1990 the applicants made a formal complaint to the Medical Services Committee at Powys Family Health Services Authority (“FHSA”), alleging that Robert’s doctors (including Dr Boladz, Dr Flower, Dr K. Hughes, Dr E. Hughes and Dr Williams) failed to provide adequate professional medical services, the lack of which resulted in Robert’s death. The complaint was referred to West Glamorgan FHSA because one of the named general practitioners was a member of Powys FHSA Medical Service Committee.
On 5 July 1990 Dr Forbes wrote to Dr E. Hughes inviting the five general practitioners involved in Robert’s treatment to meet him. This meeting between Dr Forbes and the five general practitioners took place at Morriston hospital. The doctors discussed their defences to the Powells’ allegations of medical negligence.
On 22 November 1990 the Powells received copies of the general practitioners’ notes from West Glamorgan FHSA. These were the general practitioners’ notes as disclosed to FHSA and used as evidence at the Medical Services Committee Hearing on 13 December 1990. Upon receipt of these records, the Powells noted that they differed significantly from the documents shown to them shortly after Robert’s death.
First, in place of CSS/1, a new clinical summary sheet had been substituted. This new clinical summary sheet was blank on its reverse side, and did not contain any reference to “Addison’s disease.” Indeed, in the copy records seen by the Medical Services Committee, there is no document which contained those important words.
Second, a different letter written by Dr Forbes was substituted. The substituted letter was typed on a different kind of paper from the original, and omitted any reference to Addison’s disease. The substituted letter emphasised the possibility that Robert suffered from gastritis. It was thus much less incriminating to the general practitioners than the original letter of 18 January 1990 which emphasised the importance of referring Robert back to the hospital if vomiting re-occurred.
Third, the general practitioners’ notes contained a referral letter to Dr Forbes signed by Dr Williams, and dated 12 April 1990. The letter was deliberately misleading. It made no mention of vomiting, which Dr Williams told the Powells was the reason for immediate referral of Robert back to Dr Forbes. The letter omitted any reference to the prescription of Dioralyte for vomiting.
The Powells immediately appreciated that the notes had been deliberately falsified.
On 23 November 1990 the first applicant examined the original general practitioners’ records at the West Glamorgan FHSA. The originals corresponded exactly with the photocopies he had received the day before.
On 30 November 1990 the first applicant received a second copy of the general practitioners’ records which had been compared personally against the originals by Mrs Newton, the Deputy Director of Administration at the West Glamorgan FHSA. This set was identical to the first set.
Proceedings before the Medical Services Committee
On 13 December 1990 a hearing was conducted before the Medical Services Committee of the West Glamorgan FHSA.
At the hearing, the Powells alleged that Robert’s medical records had been falsified. The Powells called the Reverend Thomas to corroborate their allegation that the clinical summary sheet currently in the medical record was not the document they had seen following Robert’s death. In response to questions regarding the alleged falsification of records, Dr K. Hughes stated that the medical record had been in his possession at all times since Robert’s death and had not been tampered with in any way.
Although NHS (National Health Service) Regulations provide that a complainant is entitled to put any questions relevant to the case to the respondent doctors, the Chairman of the Committee would not allow the first applicant to ask more than a few basic questions. Neither the Chairman nor members of the Committee asked the respondent doctors any pertinent questions regarding the alleged cover up.
The Medical Services Committee concluded that one of the doctors, Dr Flowers, should be given the minimum possible reprimand. She was “warned to conform with her terms of service.” The remaining four practitioners were found not to be in breach of their terms of service. The Committee made no mention, in its finding of facts, about the allegations of post-death falsification of medical records. The Powells appealed against these findings to the Secretary of State for Wales pursuant to Regulation 11(1) of the NHS.
Appeal to the Welsh Office
1. Events preceding the appeal
The appeal was set to be heard on 4 November 1991. However, the proceedings were postponed when the Powells objected to the Welsh Office’s appointment of a Chairman who was involved in defending the FHSA against the Powells’ civil action.
On 7 February 1992 the West Glamorgan FHSA forwarded Robert’s original general practitioners’ records to his solicitor who, in turn, forwarded them to a forensic documents examiner.
On 10 March 1992 the forensic documents examiner sent the original records under recorded delivery to the Welsh Office.
On 11 March 1992 the Welsh Office received these documents and a record was kept of their receipt.
On 16 March 1992 the Welsh Office gave custody and control of the original general practitioners’ records to the Chairman of the appeal.
2. Evidence of falsification of Robert Powell’s medical records
On 17 March 1992 the appeal commenced. The applicants offered evidence to substantiate their allegation that medical records had been falsified.
Regarding the allegedly falsified letter of referral from Dr Williams, the Powells called Mrs Simms, an employee at the Ystradgynlais Health Centre. Mrs Simms testified that she typed the original letter from Dr Williams’ dictation tape on 19 April 1990. She was then told to destroy the original letter and back-date the letter she was told to type in its place to 12 April 1990. Mrs Simms admitted at the hearing that she felt “uncomfortable” about typing a referral letter, knowing that the child was already dead.
The Powells submitted that Dr Williams falsified the referral letter because he knew he should have referred Robert to the Hospital immediately. In fact he did not do so and Robert died six days later. The Powells alleged that Dr Williams subsequently attempted to cover up this error by making it look as though he had made the referral.
The applicants presented evidence regarding the alleged substitution of CSS/1 including the testimony of Reverend Thomas.
The applicants submitted that at the 5 July 1990 meeting there was collusion between Dr Forbes and the general practitioners to alter medical records in order to present false evidence before the Medical Services Committee.
On the 19 March 1992 the appeal hearing was adjourned until September of the same year.
3. The “missing” documents
In September 1992, at the beginning of the reconvened hearing, a folder containing “missing” documents was discovered among the original general practitioners’ records. This folder contained (1) a copy of a discharge notification from Robert’s hospital stay in December 1989 which had been “block stamped” to indicate that it had previously been seen and noted by the doctors; (2) a missing referral letter from Dr Flower on the day Robert Powell died.
These documents had not been in the general practitioners’ records on the numerous occasions when the first applicant inspected them. Moreover, Mrs Newton, Deputy Director of Administration of the West Glamorgan FHSA, confirmed under oath that the additional documents had not been part of the records while they were in her custody between November 1990 and February 1992. When the first applicant inquired about the whereabouts of the records between March and September 1992, the Welsh Office could not account for them.
The applicants’ solicitor maintained that the discovery of these new documents prejudiced their case, and requested that the matter be referred to the Director of Public Prosecutions. The Chairman refused to make the referral. The solicitor advised the first applicant that he was unlikely to obtain justice from the hearing, which he referred to as a “kangaroo court.” The solicitor gave notice that formal application would be made to withdraw the appeal, and left the hearing.
After withdrawing the appeal, the first applicant examined the records at the West Glamorgan FHSA. He found that the records had a tick on the top right hand corner and were numbered on the back. Those markings had not been on the documents when he had seen them before. When he asked the deputy director about the markings, he was told that neither she nor any member of the FHSA staff had made them.
The criminal investigation
In March 1994, following the withdrawal of the appeal to the Welsh Office, the Powells’ solicitor invited the Director of Public Prosecutions to investigate the conduct of each of the general practitioners to determine whether there was evidence sufficient to support a prosecution for attempting to pervert the course of justice, forgery, perjury, and/or manslaughter. The Director of Public Prosecutions referred the matter to the Dyfed-Powys Police.
The Police enquiry continued for no less than two years, during which time the first applicant was advised to postpone any civil action against the general practitioners. In the course of the investigations, the first applicant was interviewed five times. The police did not, however, interview all of the doctors. Significantly, they did not interview Dr Forbes, who initially suspected Addison’s disease when Robert was admitted to hospital in December 1989. In addition, the police informed the first applicant that they could not access the hospital’s computerised medical records. On 5 January 1996 the Crown Prosecution Service (“CPS”) informed the first applicant that there was insufficient evidence to proceed with his complaint.
In response to the first applicant’s written inquiries questioning the thoroughness of the investigation, he received a letter from the CPS confirming that it did not intend to prosecute. Thereafter, the first applicant instructed his solicitors to put his civil case down for trial.
In April 1996, over two years after the Powells referred the matter to the CPS, and three months after the CPS informed the Powells that they did not intend to proceed with the matter, the CPS suggested that the Dyfed-Powys Police should obtain an expert medical opinion as to whether Robert had died as a result of “gross medical negligence.” Thereafter, an expert medical witness prepared a report analysing the treatment given Robert by Dr Forbes. Although the medical expert concluded that Dr Forbes had been negligent, the CPS considered that there was still insufficient evidence to prosecute.
The Dyfed-Powys Police did not appear to investigate the Powells’ allegations of falsification of medical records, and instead concentrated on the possibility of prosecution for gross medical negligence.
The applicants have subsequently learned that the general practitioners involved have served as Police Surgeons for the Dyfed-Powys Police for the last twenty years.
Non-statutory inquiry into the whereabouts of Robert’s medical records during the period March to September 1992 and parliamentary questions
Following the withdrawal of his appeal to the Welsh Office, the first applicant contacted Jonathan Evans MP and Rhodri Morgan MP, and explained the history of Robert’s illness and death, the alleged cover up, the Medical Services Committee hearing, and the appeal to the Welsh Office. Jonathan Evans complained to the Parliamentary Commissioner for Administration about the alleged falsification of medical records and the whereabouts of Robert’s medical records during the Welsh Office appeal. In response to Mr Evans’ complaint, Mr Redwood at the Welsh Office agreed to set up a non-statutory inquiry into the matter. The proposed inquiry was cancelled, however, because the general practitioners refused to attend.
On 18 May 1995 Rhodri Morgan MP posed the following parliamentary question to the Secretary of State for Wales with respect to the whereabouts of Robert’s medical records between March and September 1992:
“What departmental records exist of retrieval and replacement between 19 March and 7 September 1992 of files held in his departmental vaults containing the original general practitioner records and hospital records of Robert Powell (deceased) . . . pertaining to the Appeal by Mr. William Powell . . . father of the deceased child under the NHS complaints procedure in relation to the primary health care? [24784]”
Mr Redwood responded that the Welsh Office never had care of Robert’s general practitioners’ records.
It was later established that the Parliamentary Answers disclosed the very reverse of the truth. On 16 October 1995 the first applicant received a letter from William Hague MP, Secretary of State for Wales. Mr Hague informed the first applicant that the records had been received by the Department on 11 March 1992 and expressed his intention to set up an independent examination of the management of these papers during the period of the two hearings. He appointed Elizabeth Elias to investigate.
Elizabeth Elias interviewed the Powells, the Reverend Thomas, the applicants’ solicitor and undisclosed Welsh Office officials. Ms Elias did not interview any of the doctors. Ms Elias’s report on her investigation was inconclusive; she stated that she had been unable to establish the whereabouts of Robert’s medical records during the adjournment of the appeal.
Effects of post-death misconduct on the applicants’ mental health
The vital importance to parents of knowing all the circumstances surrounding their child’s death is illustrated by the effect that the obfuscation of information has had on the applicants. Since Robert’s death, over seven years ago, the first applicant has not been able to return to work. For years after the death, the first applicant read through the medical records and wrote letters every day. He was unable to concentrate on anything except the case. His relationship with his other family members deteriorated. The first applicant has been diagnosed with Post Traumatic Stress Disorder directly connected to the falsification of the medical records.
A psychiatrist’s report prepared for the civil trial states (at paragraph 54) :
“Should the outcome [of the civil litigation] suggest to [the first applicant] that justice has been done, at least in his eyes, then his symptoms will gradually recede and he may make a good recovery and return to normal functioning.”
The psychiatrist quoted the first applicant as stating:
“I’d like to prove that my wife and I were good parents who took our son to people who we trusted. I have a terrible feeling of emptiness. ... They haven’t let me grieve. I won’t grieve until this is sorted out.”
In the aftermath of Robert’s death, the second applicant developed Panic Disorder according to the Diagnostic and Statistical Manual of Mental Disorder 3rd Edition Revised 1987 [DSM III]. This disorder is characterised by the presence of panic attacks occurring without warning at a frequency of at least four times in a four week period.
The psychiatrist who evaluated the second applicant for the civil trial concluded:
“My view, therefore, is that this lady does suffer from chronic Panic Disorder. The reasons for this are multifactorial. The facts that her mother suffered from a similar disorder suggests the possibility of a constitutional predisposition to such an illness. There is little doubt however that the predominant precipitant was the events that followed her child’s death.”
The second applicant has been taking benzodiazepine tranquillisers for this disorder since September 1990. Her doctor advises her that it is likely that she will require this medication for the rest of her life.
Proceedings in the High Court of Justice
1. Causes of Action
By a writ issued 13 April 1993, the applicants instituted civil proceedings against the doctors for (1) negligence and (2) post-death misconduct in falsifying Robert’s medical records, following his death, to cover up evidence of wrongdoing. The Powells claimed damages on their own behalf and on behalf of the estate of Robert Powell:
(i) pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the deceased’s estate, for the deceased’s pain and suffering before his death and funeral expenses;
(ii) pursuant to the Fatal Accidents Act 1976 for bereavement;
(iii) for personal injuries suffered by the applicants, namely psychiatric injury as a result of witnessing the pain, suffering, and death of the deceased;
(iv) for psychiatric injuries suffered by the applicants by reason of the discovery of the dishonest attempts of the respondents to conceal the true facts surrounding Robert’s death.
Regarding the falsification of medical records, the applicants alleged the following causes of action:
(i) negligence towards the applicants as patients, or alternatively as parents of the deceased;
(ii) fraudulent misstatement;
(iii) unlawful interference with a right;
(iv) unlawful act of conspiracy.
Although all defendants originally denied negligence, the Health Authority subsequently admitted liability on the basis of the failure to diagnose and treat Addison’s disease. The Health Authority agreed to pay the applicants £80,000, as well as £20,000 costs. The action against the individual doctors in respect of the medical negligence claims was consequently discontinued.
2. Application to strike out
By summons dated 29 May 1996, the general practitioner defendants applied to strike out those parts of the Statement of Claims relating to the post-death events on the basis that they failed to disclose a reasonable cause of action. In considering the defendants’ application to strike out the claims, Mr Justice Butterfield proceeded according to RSC Order 18, r. 19(1) on the basis that all pleaded allegations made by the plaintiffs were correct. On 24 June 1996 Mr Justice Butterfield struck out the applicants’ claims regarding post-death misconduct on the ground that the duty alleged by the plaintiffs did not exist in law.
(a) Duty of candour
Judge Butterfield held that doctors have no duty of candour to the parents of a deceased child about the circumstances surrounding the death. The court held that, under Bolam v Frien Hospital [1957] 1 W.L.R. 582, the standard required to discharge the duty of care is “that of the ordinary skilled man exercising and professing to have that special skill.” The court then cited Sidaway v the Governors of Bethlehem Royal Hospital [1985] 1 A.C. 871 for the principle that a doctor owes a duty of care to his patient only in his capacity as healer in the context of the clinical management of that patient.
Mr Justice Butterfield therefore reasoned that:
“[a]fter the death of the patient, no duty of care can arise with regard to the provision of information to the parents of the deceased. Whatever ethical or moral obligations there may be on a doctor in such circumstances, there is no legal obligation, since the provision of information can have no clinical relevance to any future treatment.”
Mr Justice Butterfield concluded:
“I must apply the law as it is. In my judgement, no duty such as that contended for by the plaintiffs exists in law. Were I to hold to the contrary, it would amount, on my part, to judicial legislation.”
(b) Fraudulent misstatement
Mr Justice Butterfield held that the plaintiffs’ claim disclosed no reasonable cause of action in so far as it was based on fraudulent misrepresentation. The court held that the essence of the tort of fraudulent misrepresentation is the use of false words and statements uttered with the knowledge either that they were likely to cause injury or with reckless disregard as to whether they would cause injury. In this case, the court held, the plaintiffs expressly asserted that they knew the representations made by the defendants were false.
(c) Unlawful interference
Neither did the court find an actionable right to compensation for personal injury by virtue of unreasonable and unlawful interference with a right. The court rejected the applicants’ submission that the defendants interfered with their right to complain in respect of the general practitioners’ breach of their terms and conditions of service. Mr Justice Butterfield reasoned that all the authorities touching on the question of interference with rights dealt with interference with economic interests or contractual obligations.
(d) Conspiracy
Finally, the court found no actionable right in conspiracy. Mr Justice Butterfield acknowledged that the post-death misconduct might raise allegations of criminal conspiracy to pervert the course of justice, the criminal act of forgery, theft of documents and perjury. To be actionable as a conspiracy in tort, however, the unlawful acts must themselves give rise to actionable civil wrongs. As the acts complained of were not themselves torts, the court held that there could be no conspiracy to commit them.
Proceedings before the Court of Appeal
The applicants appealed from the Order of Mr. Justice Butterfield to the Court of Appeal. On 1 July 1997 the Court of Appeal dismissed the appeal, and refused leave to appeal to the House of Lords.
Lord Justice Stuart Smith gave judgment in respect of the tort of negligence in the following terms:
“. . .[t]he only patient who was seeking medical advice and treatment was Robert. It was to him that the Defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer appropriate medication, observe relevant symptoms and seek further assistance if need be. In giving such advice, the doctor owes a duty to be careful. But the duty is owed to the child, not to the parents. ...
I do not think that a doctor who has been treating a patient who has died, who tells relatives what has happened, thereby undertakes the doctor-patient relationship towards the relatives. It is a situation that calls for sensitivity, tact and discretion. But the mere fact that the communicator is a doctor, does not, without more, mean that he undertakes the doctor-patient relationship.”
The court also examined the other elements of the tort of negligence, concluding that the facts disclosed neither proximity nor foreseeability. Lord Justice Stuart reasoned that the lack of a doctor-patient relationship between plaintiffs and defendants meant there was no proximity, and that a reasonable man could not foresee that substitution of medical records would worsen the applicants’ condition.
The court concurred with Mr Justice Butterfield’s determination that the facts did not disclose an action on any other ground.
Petition for leave to appeal to the House of Lords
In their application for leave to appeal to the House of Lords, the applicants submitted that the Court of Appeal was wrong in law to conclude that:
(i) the communication of the circumstances of the death of a minor to the parents is outside the doctor-patient relationship;
(ii) the doctor-patient relationship is limited to the healing/treating function only;
(iii) a doctor who chooses to answer an inquiry from grieving parents as to the circumstances of the death of their child assumes no duty of care in respect of answers given, whether or not such a role falls outside the doctor-patient relationship;
(iv) there was no reasonably foreseeable risk of psychiatric harm being caused to vulnerable and bereaved parents as a result of their discovering an attempted coverup; and
(v) there is no duty of candour, or any duty, to the parents in respect of communicating the circumstances of the death of the child.
The applicants submitted that the House of Lords should consider the following question of law:
Does a medical practitioner owe a common law duty of care to the parents of his deceased minor patient
(i) in answering their questions as to the treatment the minor received?
(ii) in the preservation of the deceased’s medical records?
(iii) in the disclosure of the deceased minor’s medical records to the patients upon their request?
On 2 April 1998 the House of Lords refused leave to appeal. The applicants were thus left with no other remedy under English law to challenge the falsification of Robert’s medical records.
B. Relevant domestic law and practice
Procedure for complaint to the Medical Services Committee
In accordance with the provisions of the NHS (Service Committees and Tribunal) Regulations 1974, NHS patients are entitled to have complaints about medical negligence investigated by the Medical Services Committee. The complaint against a general practitioner must be lodged within thirteen weeks following an alleged breach of his terms of service.
The complainant is entitled to appear before the committee, and to give and to call such evidence as the Committee may consider relevant. The complainant is entitled to put any questions relevant to the case to the respondent doctors or to any witness called by them, either directly, or if the Committee so directs, through the Chairman of the Committee.
The criminal law
English law recognises the following as criminal offences: (1) Attempt to Pervert the Course of Justice, (2) Forgery and (3) Perjury.
Attempt to pervert the course of justice
This offence is a common law offence triable only on indictment and punishable at the discretion of the court. The offence penalises any conduct which has a tendency wrongly to interfere, directly or indirectly, with the initiation, progress or outcome of any criminal or civil proceedings, accompanied by an intention to do so (Selvage [1982] 1 All ER 96 [1982] 1 WLR 811 CA).
The accused’s conduct will have a tendency to pervert the course of justice if he has done enough for there to be a possibility, without further action on his part, that a perversion of the course of justice may result; it is irrelevant that the possibility does not materialise (Murray [1982] 2 All ER 225 [1982] 1 WLR 475, CA). Fabrication of false evidence for the purpose of misleading a judicial body constitutes attempting to pervert the course of justice (Vreones [1891] 1 QB 360, 60 LJMC 62).
Forgery
The law relating to forgery is governed by the Forgery and Counterfeiting Act 1981. The offence of forgery is defined by section 1 of the Act, which states that a person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or any other person’s prejudice. The actus reus of this offence is “making a false instrument,” and according to section 9(2) this includes altering an instrument so as to make it false in any respect.
Perjury
Section 1(1) of the Perjury Act 1911 provides that perjury, which is triable only on indictment, is committed by a person who, lawfully sworn as a witness or interpreter in a judicial proceeding, wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true. A person is lawfully sworn within the meaning of the Act if he gives his evidence on oath, affirmation or solemn declaration. The term “judicial proceeding” includes a proceeding before any court, tribunal or person having by law power to hear, receive, and examine evidence on oath.
Civil procedure
Grounds for striking out
A statement of claim may be struck out for any of the reasons set out in RSC (Rules of the Supreme Court) Order 18, r. 19(1). This provides:
The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:
(a) it disclosed no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court;
The court may order the action to be stayed or dismissed or judgement to be entered, as the case may be.
Striking out under RSC Ord. 18, r. 19 is only for plain and obvious cases (per Lord Templeman in Williams & Humbert v W.H. Trade Marks (Jersey) Ltd. [1986] AC 368 HL). Cases requiring prolonged and serious argument are therefore unsuitable for striking out.
Where the application is brought on the ground that the pleading discloses no cause of action or defence, the issue is one of law to be argued on the face of the pleadings. RSC Ord. 18 r. 19(2) provides that no evidence shall be admissible on an application under paragraph 1(a). This means that the judge must accept the pleaded facts as true for the purposes of evaluating an application to strike out.
Paragraph 1(a) only applies to claims which are ‘obviously unsustainable’ (see, for example, Nagel v Fielden [1966] 2 QB 633 at 648, 651 CA, per Dankwerts and Salmon LJJ). The fact that a case is weak and unlikely to succeed is not a ground for striking it out.
The civil law

1. Duty of candour
Under English law, a duty of care arises under the principles enunciated by Lord Bridge of Harwich in Caparo Industries plc v Dickman [1980] 2AC 605 at 616E-618F, namely where the following three elements are present:
(i) the foreseeability of damage arising from the relevant act or omission;
(ii) a sufficient relationship of proximity between the parties
(iii) as a matter of legal policy, it is fair, just and reasonable that a duty of care should exist.
The duty of care imposed on the medical profession is well established. According to the principle in Bolam v Frien Hospital [1957] 1 W.L.R. 582, the standard required to discharge the duty of care is “that of the ordinary skilled man exercising and professing to have that special skill.”
The Court re-examined the Bolam standard in Sidaway v the Governors of Bethlehem Royal Hospital [1985] 1 A.C. 871, in which Lord Diplock stated that the Bolam test:
“[lays] down a principle of English law that is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions as respects that patient.”
English law does not recognise a duty of care for doctors:
(i) where a psychiatrist examines a child and interviews a parent for the purposes of discharging a local authority’s care responsibilities (X v Bedfordshire CC, M v Newham [1995] 2AC 633);
(ii) where a doctor employed by an insurance company examines a plaintiff or a claimant;
(iii) where a doctor goes to the assistance of a stranger injured in an accident (Capital and Counties v Hants CC [1997] 2AER 865 at p. 883f).
Whilst it was arguable that doctors had a duty not to falsify medical records under the common law (Sir Donaldson MR’s “duty of candour”), before Powell v Boladz there was no binding decision of the courts as to the existence of such a duty. As the law stands now, however, doctors have no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records.
2. Fraudulent misstatement
According to the doctrine established by Pasley v Freeman (1789) 3 TR 51 and Langridge v Levy (1837) 2 M&W 519, a person who makes a false statement intended to be acted upon must make good the damage naturally resulting from its being acted upon.
Under Wilkinson v Downton [1897] 2QB 57, making a statement known to be false with the intention that it should be believed and with the intention of causing injury, which in fact results, is actionable. Where the defendant’s act is plainly calculated to produce some effect of the kind which was produced, an intention to produce it ought to be imputed to the defendant.
3. Conspiracy
To be actionable as a conspiracy, the unlawful act relied upon must be actionable at the suit of the plaintiff. It is not sufficient that it amounts to a crime or breach of contract with a third party (see Clerk & Lindsell on Torts 17th Ed. Para. 23-80; Marinan v Vibart [1963] 1QB 234 & 528; Hargreaves v Bretherton [1959] 1QB 45). To prove conspiracy, one need not prove that the predominant purpose was to injure, but one needs to prove that the conspiracy was “aimed or directed at the plaintiff and it can reasonably be foreseen that it may injure him, and does in fact injure him.”


ITEMID: 001-5700
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PORTER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1941 and living in Buckinghamshire. She is represented before the Court by Mr T. Christie of the National Romani Rights Association.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her husband, who are both gypsies, purchased a plot of land in 1984 and moved to live there in their caravans. Applications made for planning permission for either of their caravans or for a dwelling were refused by the South Buckinghamshire District Council (the Council). The site lay within the Green Belt.
The applicant has been involved in procedures challenging the refusal of planning permission for some years. In the latest appeal against the refusal of planning permission, the Planning Inspector held in his decision of 6 October 1998 inter alia
“4. PPG2 makes it clear that development not falling within the categories of exceptions against development in the Green Belt is “inappropriate” development and should not be approved except in very special circumstances. Para. 3.2 of PPG2 makes it clear that the very special circumstances to justify inappropriate development will not exist unless the harm by reason of the inappropriateness and any other harm is clearly outweighed by other considerations...
5. Having regard to the above established planning policy background and the representations made, and from my inspection of the appeal property and its surroundings, I consider that the main issue in this case is whether the retention of the mobile home and its associated outbuildings would be inappropriate development in the Green Belt, and if so whether there are any very special circumstances which outweigh the harm caused by such development.
6. Inappropriate development comprises all development except for a limited number of specified exceptions. The proposed retention of a new residential unit and the associated outbuildings does not constitute one of the identified exceptions...
7. I turn now to whether there are very special circumstances in this case which outweigh the harm caused by such inappropriate development. You indicate... the fact that the development is unobtrusive in form and... the gypsy status of the <applicant and her husband>. ...
9. The appeal site is located close to the boundary between the Green Belt and the north-western tip of the developed area of Iver. Given this location, I accept the Council's view that it is particularly vulnerable to pressure from the expansion of this adjoining area. As such, the continued openness of the site and that of the tract of land of which it forms part is of considerable importance in ensuring that the adjoining area does not expand and coalesce with the developed area of Slough to the west. Although the area contains a number of existing buildings it remains predominantly rural in character and largely undeveloped. However <the applicant's> development, by virtue of its design, nature and siting constitutes a cluttered and urban form of development. This I consider... is both harmful to the rural and open character of the Green Belt and to the visual amenities and landscape of this part of Colne Valley Park. ...
10. ...With respect to the accommodation needs of <the applicant>, I have taken into account that there are 4 authorised gypsy caravan sites in South Bucks consisting of a total of 66 pitches having a capacity for accommodating 132 caravans. In January 1998, 109 caravans of an estimated 63 families were parked on these pitches.
13 ...I do not find the fact of <the applicant's> infirmity or of the suitability of horse-keeping and breeding in the countryside to be very special reasons for allowing the retention of residential use in the Green Belt. There is no convincing reason why the use could not be carried out and secure permanent accommodation found elsewhere on land outside the Green Belt.
16. I have taken into account all other matters raised in the written representations including the support given to <the applicant> locally but there is nothing of sufficient substance to outweigh those considerations which led me to the decision in this case.
17. For the above reasons... I hereby dismiss the appeal...”
The Council took proceedings to obtain an injunction against the applicant and her husband. On 27 January 2000, the High Court ordered the applicant to remove the caravans.
Following the applicant's appeal, the Court of Appeal on 6 June 2000 adjourned the matter pending further argument and with a view to reviewing the matter in the light of the Human Rights Act 1998 entering into force on 2 October 2000.
The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).
“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ...
1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.
1.5. There are five purposes in Green Belts:
- to check the unrestricted sprawl of large built-up areas;
- to prevent neighbouring towns from merging into one another;
- to assist in safeguarding the countryside from encroachment;
- to preserve the setting and special character of historic towns; and
- to assist in urban regeneration by encouraging the recycling of derelict and other urban land. ...
2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. ...
3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ...
3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”


ITEMID: 001-103060
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GRIGORYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Ms Oksana Vasilyevna Grigoryeva, is a Russian national who was born in 1974 and lives in Moscow. She was represented before the Court by Mr V. Rumyantsev, a lawyer practising in Moscow. The respondent Government are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 April 2004 the applicant arrived at the Sheremetyevo-2 airport in Moscow with the intention to travel to Munich. The customs found on her 9,750 euros and 11 United States dollars in cash which she had not reported in her customs declaration. The applicant was charged with smuggling of foreign currency, a criminal offence under Article 188 § 1 of the Criminal Code.
On 13 September 2004 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of six months’ imprisonment conditional on six months’ probation. It also ordered that the applicant’s money be reverted to the State.
Counsel for the applicant submitted a statement of appeal, in which he argued, in particular, that the money had been reverted to the State unlawfully since it had not been instrument of any offence.
On 19 October 2004 the Moscow City Court upheld the conviction on appeal. As regards the money, it noted as follows:
“According to a clarification issued by the Supreme Court of the Russian Federation, objects of smuggling include foreign currency.”
The City Court did not indicate the legal provision, on which the confiscation measure was based.
Counsel filed an application for supervisory review, claiming in particular that the courts had decided on the destiny of physical evidence in breach of the relevant provisions of the Code of Criminal Procedure.
On 15 February 2005 the Moscow City Court rejected his application in the following terms:
“The argument that the court[s] had breached the requirements of Article 81 § 3 of the Code of Criminal Procedure in making the decision on the destiny of physical evidence – which the currency seized from Ms Grigoryeva was recognised to be – is unsubstantiated because the physical evidence had been reverted to the State in accordance with Article 81 § 3 (4) of the Code of Criminal Procedure.”
On 22 September 2005 the Supreme Court of the Russian Federation refused institution of supervisory-review proceedings in the case.
On 27 March 2009 a deputy President of the Supreme Court set aside the Supreme Court’s decision of 22 September 2005 and referred the counsel’s complaint for examination to the Presidium of the Moscow City Court.
On 17 April 2009 the Presidium of the Moscow City Court reviewed the complaints which had been submitted by the applicant’s counsel and by the first deputy to the Moscow City prosecutor, and held that the conviction and confiscation order had been lawful and justified.
On 5 August 2009, following a new application for supervisory review introduced by the deputy Prosecutor General, a judge of the Supreme Court decided to institute supervisory-review proceedings before the Criminal Division of the Supreme Court.
On 7 September 2009 the Supreme Court upheld the applicant’s conviction of smuggling under Article 188 § 1 of the Criminal Code but quashed the confiscation order on the ground that the applicant’s money had not been criminally acquired or illegally obtained. The amount confiscated was to be repaid to the applicant.
On 31 August 2010 the Court requested the Government to indicate whether the money had been repaid to the applicant.
By letter of 12 October 2010, the Government submitted a payment document, according to which the amount of 336,115.79 Russian roubles had been credited to the applicant’s account on 30 September 2010.
By letters of 6 October and 8 November 2010, the applicant confirmed that the money had been repaid to her.
The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years’ imprisonment (Article 188 § 1).


ITEMID: 001-109197
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TROSIN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible (Article 35-1 - Effective domestic remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1968 and is currently serving a life sentence in prison.
6. On 26 August 2004 the applicant was arrested on suspicion of murder.
7. On 28 August 2004 the Prymorskyy District Court of Odessa (“the District Court”) ordered the applicant to be placed in pre-trial detention for two months. The applicant was placed in the Odessa no. 21 Pre-Trial Detention Centre (“the Odessa SIZO”).
8. On 20 October and 17 November 2004 the District Court extended the applicant’s pre-trial detention to three and four months respectively.
9. On 24 December 2004 and 26 January 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) extended the applicant’s pre-trial detention to five and six months respectively.
10. The applicant was not present at those hearings and he was allegedly not given the investigator’s submissions so that he could prepare his objections.
11. According to the applicant, in the course of investigation he was illtreated, with the purpose of making him confess to the murder.
12. On 24 February 2005 the case was referred to the Court of Appeal for trial.
13. On 29 April 2005 the Court of Appeal, acting as a court of first instance, found, inter alia, that the applicant and two co-defendants had committed murder with particular cruelty and for financial gain. The court sentenced the applicant to life imprisonment. The judgment was based on various pieces of evidence including an acknowledgment of guilt by the applicant and other defendants during the trial.
14. After the hearing the applicant was handcuffed and escorted to the high security wing of the Odessa SIZO.
15. On 4 October 2005 the Supreme Court upheld the judgment of 29 April 2005, following which it was made final. For the period of consideration of the case by the Supreme Court the applicant was detained in Kyiv no. 13 Pre-Trial Detention Centre, where he was allegedly not provided with sufficient facilities, such as a table and chair, to prepare his defence.
16. Following the Supreme Court’s decision of 4 October 2005 the applicant repeatedly submitted applications to have his case reviewed on grounds of exceptional circumstances. He also asked the authorities to provide him with a lawyer to assist him with the preparation of these applications. All his applications were rejected as unsubstantiated; a lawyer was not provided because the criminal proceedings were already finished.
17. On several occasions the applicant requested copies of certain material from his criminal case file. The requests were granted, but with delays.
18. In 2008 the applicant instituted three separate sets of court proceedings against, respectively, the judge who had presided over his criminal case before the first-instance court, the Supreme Court chamber on criminal cases, and the General Prosecutor, claiming that he had been unfairly convicted and that his applications for review of his case on grounds of exceptional circumstances had been arbitrarily rejected. All these proceedings are pending.
19. According to the applicant, he was not allowed family visits during his pre-trial detention.
20. During his post-conviction detention until 16 February 2010 the applicant was allowed to see his relatives no more than once every six months. Subsequently, he was granted family visits once every three months.
21. The visits lasted no longer than four hours. No more than three adult visitors could be present at once. The applicant maintains relations with his wife, mother, adult brother, and his son born in 1992.
22. In February 2010, upon arrival for the visit, one of his four relatives was not admitted to see the applicant because of the limitation on the maximum number of adults per visit. Since then, one person out of the four has had to be excluded when planning a visit to the applicant.
23. During the meetings the applicant communicated with the visitors via glass partition. The applicant’s conversations with the visitors were listened to by a prison officer.
24. On 1 February 2006 the applicant sent a letter to the Court, the first page of which had been stamped by the detention facility.
25. Up to October 2006 the applicant’s letters to the Court were accompanied by covering letters from the detention facility briefly stating the nature of the applicant’s submissions.
26. In accordance with Articles 110 and 151 of the Code, short visits from relatives and other persons may last no longer than four hours. Such meetings must be held in the presence of a prison officer. Until the amendment of 21 January 2010 (which came into effect on 16 February 2010), life prisoners were entitled to short visits from their relatives and other persons once every six months. Since that amendment, life prisoners have been entitled to such visits once every three months.
27. Article 113 of the Code, following amendments made to it on 1 December 2005, stipulated that prisoners’ correspondence was to be subject to automatic monitoring by the prison staff except for proposals, applications and complaints addressed to the National Ombudsman, the European Court of Human Rights, other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations, or prosecution authorities.
28. The relevant provisions of the Code read as follows:
“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ...
2. Any decisions, actions or inaction on the part of public authorities may be appealed against to administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ...
3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken:
...
6) reasonably;
...
8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve;
...”
“1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State.
2. A court shall apply the principle of the rule of law by taking into account the caselaw of the European Court of Human Rights. ...”
“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum.
2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular:
1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity; ...”
29. In accordance with paragraph 47 of the above-mentioned rules, prisoners are entitled to visits from no more than three adults at once, who may also be accompanied by the prisoner’s under-age children.
Annex 17 of the Prison Rules provides for two options of equipping a room for short meetings between prisoners and visitors. According to the first option the meeting room is to be equipped with tables along the room separated by free space of 120 centimetres in width. The chairs for visitors are not to exceed ten items; stools for the prisoners are to be fixed to the floor.
According to the second option, a meeting room is to be equipped with booths 80 centimetres in width and 100 centimetres in length. One or two booths are to be of 140 centimetres to accommodate two visitors or visitors with children coming to see the same prisoner. The visitors’ booths and the prisoners’ booths are to be separated by glass partitions. The booths are to be equipped with a loudspeaker and a telephone handset. The table of the supervising officer is to be equipped with a device for listening to the conversations in the booths.
On 31 December 2003 the Ministry of Justice, having reviewed the lawfulness of the Prison Rules, included them in the unified register of normative legal acts.
30. The relevant extract from the Recommendation read as follows:
“Part II Conditions of imprisonment
Contact with the outside world
24.1. Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
24.3. National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
24.4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5. Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
31. The relevant extract from the Report read as follows:
“33. In many European countries the number of life-sentenced and other long-term prisoners is on the increase. During some of its visits, the CPT has found that the situation of such prisoners left much to be desired in terms of material conditions, activities and possibilities for human contact. Further, many such prisoners were subject to special restrictions likely to exacerbate the deleterious effects inherent in long-term imprisonment; examples of such restrictions are permanent separation from the rest of the prison population, handcuffing whenever the prisoner is taken out of his cell, prohibition of communication with other prisoners, and limited visit entitlements. The CPT can see no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence, without giving due consideration to the individual risk they may (or may not) present.
Long-term imprisonment can have a number of desocialising effects upon inmates. In addition to becoming institutionalised, long-term prisoners may experience a range of psychological problems (including loss of self-esteem and impairment of social skills) and have a tendency to become increasingly detached from society; to which almost all of them will eventually return. In the view of the CPT, the regimes which are offered to prisoners serving long sentences should seek to compensate for these effects in a positive and proactive way.
The prisoners concerned should have access to a wide range of purposeful activities of a varied nature (work, preferably with vocational value; education; sport; recreation/association). Moreover, they should be able to exercise a degree of choice over the manner in which their time is spent, thus fostering a sense of autonomy and personal responsibility. Additional steps should be taken to lend meaning to their period of imprisonment; in particular, the provision of individualised custody plans and appropriate psycho-social support are important elements in assisting such prisoners to come to terms with their period of incarceration and, when the time comes, to prepare for release. Further, the negative effects of institutionalisation upon prisoners serving long sentences will be less pronounced, and they will be better equipped for release, if they are able effectively to maintain contact with the outside world.”
VIOLATED_ARTICLES: 34
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-66813
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF FALECKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Inadmissible under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1937 and lives in Cracow, Poland.
5. On 5 February 1987 the applicant lodged a claim for division of her matrimonial property with the Cracow District Court (Sąd Rejonowy).
6. The court held the first hearing on 15 July 1987.
7. Between 1987 and 1991 the court held 14 hearings (6 in 1987, 1 in 1988, 4 in 1989, 2 in 1990 and 1 in 1991).
8. On 16 November 1993 and 23 September 1994 the court held hearings.
9. On 5 June 1995 the court ordered that expert evidence be obtained. The expert opinion was delivered to the court on 11 January 1996.
10. On 25 August 1995, 17 April, 24 June and 23 September 1997 the court held hearings.
11. On an unspecified date in May 1998 the court decided to obtain fresh expert evidence. The expert submitted his report to the court on 26 June 1998.
12. On 31 August 1998 the court held a hearing.
13. On 29 December 1998 the court gave judgment.
14. During the proceedings the composition of the court changed 9 times.
15. The applicant several times complained to the President of the Cracow Regional Court about the slow conduct of the proceedings. In reply, the President admitted that the proceedings were indeed too long and informed the applicant that he would supervise their further conduct.
16. On an unspecified date in 1999 the applicant’s husband lodged an appeal against the first-instance judgment with the Cracow Regional Court (Sąd Okręgowy).
17. On 15 February 2000 the court dismissed the appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58042
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF KALAÇ v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 9
JUDGES: C. Russo;John Freeland
TEXT: 7. Mr Faruk Kalaç, a Turkish citizen born in 1939, pursued a career as judge advocate in the air force. In 1990 he was serving, with the rank of group captain, as the high command’s director of legal affairs.
8. By an order of 1 August 1990 the Supreme Military Council (Yüksek Askeri Sûrasi), composed of the Prime Minister, the Minister of Defence, the Chief of Staff and the eleven highest-ranking generals in the armed forces, ordered the compulsory retirement of three officers, including Mr Kalaç, and twenty-eight non-commissioned officers for breaches of discipline and scandalous conduct. The decision, which was based on section 50 (c) of the Military Personnel Act, section 22 (c) of the Military Legal Service Act and Article 99 (e) of the Regulations on assessment of officers and non-commissioned officers, made the specific criticism, in the applicant’s case, that his conduct and attitude "revealed that he had adopted unlawful fundamentalist opinions".
9. In a decision of 22 August 1990 the President of the Republic, the Prime Minister and the Minister of Defence approved the above order, which was served on the applicant on 3 September. The Minister of Defence ordered the forfeiture of the applicant’s social security (health insurance) card, his military identity card and his licence to bear arms.
10. On 21 September 1990 Mr Kalaç asked the Supreme Administrative Court of the Armed Forces (Askeri Yüksek idare Mahkemesi) to set aside the order of 1 August 1990 and the measures ordered by the Ministry of Defence.
11. In a judgment of 30 May 1991 the Supreme Administrative Court of the Armed Forces ruled by four votes to three that it did not have jurisdiction to entertain the application to set aside the order of 1 August 1990, on the ground that under Article 125 of the Constitution the decisions of the Supreme Military Council were final and not subject to judicial review. In that connection it observed that under the Military Legal Service Act members of the military legal service had the status of military personnel. Their compulsory retirement for breaches of discipline was regulated in the same manner as that of other army officers.
In their dissenting opinion the three members of the minority referred to the principle of the independence of the judiciary enunciated in Article 139 of the Constitution. They expressed the view that security of tenure for both civilian and military judges, which was protected by that Article, formed a lex specialis in relation to the other provisions of the Constitution and that decisions of the Supreme Military Council which infringed that principle should therefore be subject to review by the Supreme Administrative Court of the Armed Forces.
The court set aside, however, the refusal to issue social security cards to the applicant and his family.
12. On 9 January 1992 the court dismissed an application for rectification lodged by Mr Kalaç.
13. The relevant provisions of the Constitution are as follows:
"None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions."
"Everyone shall have the right to freedom of conscience, faith and religious belief.
Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of
No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby."
"All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
..."
"Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.
The exceptions laid down by law concerning judges or public prosecutors who have been convicted of an offence requiring their dismissal from the service, those whose unfitness to carry out their duties for medical reasons has been finally established or those whose continued service has been adjudged undesirable shall remain in force."
"Supervision of judges and public prosecutors as regards the performance of their duties in accordance with laws, regulations, subordinate legislation and circulars (administrative circulars, in the case of judges), investigations into whether they have committed offences in connection with, or in the course of, their duties, or whether their conduct and attitude are compatible with the obligations arising from their status and duties and, if necessary, inquiries concerning them shall be made by judicial inspectors with the permission of the Ministry of Justice. The Minister of Justice may also ask a judge or public prosecutor senior to the judge or public prosecutor in question to conduct the investigation or inquiry."
"The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service."
14. Section 22 (c) of the Military Legal Service Act provides:
"Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions."
15. Section 50 (c) of the Military Personnel Act provides:
"Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act.
The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council."
16. Article 99 of the Regulations on assessment of officers and noncommissioned officers provides:
"Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions."
NON_VIOLATED_ARTICLES: 9