ITEMID: 001-22020
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: M.B. and G.B. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, M.B., and the second applicant, G.B., who are son and father, were born in 1980 and 1959 respectively. Their application was introduced before the Court by Sternberg, Reed, Taylor & Gill, solicitors practising in Barking, Essex.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 June 1990, the local authority, the London Borough of Barking, received a report from a neighbour of the applicants that the first applicant had told the neighbour’s children that he was being buggered by his father, the second applicant. The neighbour also stated that the first applicant, aged nine, was regularly called in from play to have a sleep in the afternoon and that the second applicant had been seen at a bedroom window holding the first applicant whilst naked.
Social services and the police attended the applicants’ home at 4.45 p.m. on 8 June 1990, where they found that M.B. had been in bed together with both his parents immediately prior to their arrival. The first applicant’s grandmother arrived at the house and was noted by the social worker as expressing surprise and concern that the family were all in bed together in the afternoon. Both parents agreed that the first applicant should undergo a medical examination which was conducted by Dr H. at 6 p.m. on the same day. Dr H. was a general practitioner, who had been appointed forensic medical examiner in 1987 by the Metropolitan Police and had some 14 years’ experience in dealing with child sexual abuse cases.
Dr H.’s examination lasted from 6 p.m. until 6.10 p.m. He noted an “old scar at the 12 o’clock position of the anal margin 2mm by 3mm” which he stated “may be due to a past sexual interference”. The report concluded that “in my opinion from the examination it looks that there is evidence of sexual interference with the anal passage of this boy”. The first applicant was removed to a children’s home after the examination.
A place of safety order was obtained by the police on 9 June 1990.
A case conference was held by the local authority on 12 June 1990. The first applicant was interviewed on 13 June 1990 at the children’s home. He revealed no outward signs of having been abused and denied that he had been abused by his father.
Wardship proceedings were instituted by the local authority on 14 June 1990.
On 22 June 1990, the local authority held a planning meeting, attended by both parents, at which various options relating to the first applicant’s residence were discussed. On or about 7 July 1990, the second applicant moved out of the family home so that the first applicant could return home.
The first applicant had no contact with the second applicant for a period of two weeks and thereafter had supervised contact. After the local authority obtained reports on the mother and maternal grandmother, the first applicant was returned home on 7 August 1990 with the second applicant undertaking not to have unsupervised contact with him. Leave was also granted by the High Court on 7 August 1990 for a further examination of the first applicant.
On 30 August 1990, a joint examination on the first applicant was carried out by two consultants, Dr S. for the local authority and Dr P. for the second applicant. The examination lasted from 3.31 until 4.40 p.m. and included a close examination of the anal and genital areas and a brief internal examination. The small scar noted by Dr H. on the anal verge was not observed and both consultants concluded that there was no evidence of anal penile penetration. However, the mother disclosed that the first applicant had told her that he had been anally penetrated by two local teenage boys. The first applicant confirmed that he had been abused by two pre-pubescent youths. Dr P. doubted that there had been penetration and Dr S. noted that the penis of a pre-pubescent would be unlikely to cause any detectable injury. Dr P. gave the opinion that Dr H. had been negligent in diagnosing sexual abuse.
The local authority’s involvement with the family ceased on 5 September 1990 when the wardship ended.
An application for damages was brought by the first and second applicants in 1993 alleging negligence by the local authority and Dr H. They were granted legal aid. The action was stayed in 1993 pending the decision in X and Others v Bedfordshire County Council. On 29 July 1995, the House of Lords held in that case that in negligence no duty of care was owed by local authorities in the exercise of their statutory duties relating to the taking into care of children (see further below in Relevant Domestic Law and Practice). Following this decision the applicants’ case was struck out as disclosing no reasonable cause of action on 22 March 1996. Neither the applicants nor their lawyers were present when the case was struck out as this was accepted as the inevitable consequence and no transcript of the proceedings has been provided.
Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980.
Sections 1 and 2 of the Child Care Act 1980 provided that:
“1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.
2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen -
(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;
(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and
(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section”.
Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority, could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control.
The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court.
As soon as the originating summons is issued, the custody of the child vests in the court. From that moment, the parties to the proceedings, including the local authority, only have such power and authority over the child as is conferred by the court.
In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation.
Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship of proximity to the defendant; and
– that it is fair, just and reasonable to impose liability on the defendant.
These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).
If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.
The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. In giving judgment in the three cases heard together, the House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson stated inter alia:
“I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...
The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.
First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority‘s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.
Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (‘Cleveland Report 1987’) said, at p. 244:
‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’
Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.
The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.
If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.
Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child‘s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”
In respect of the applicants’ claim in one of the cases, known as the Newham case, that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows:
“In the Newham case the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...
Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...
In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children ...
Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ...”
The House of Lords later gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.
Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care:
“(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”
At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.
In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.
The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.


ITEMID: 001-75952
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DIXON AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant is a British national who was born on 21 January 1949 and who lives in Liverpool. He is represented before the Court by Mr B. White, Warrington Community Law Centre. The United Kingdom Government (“the Government”) are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office.
The applicant was widowed on 12 April 1992. There were three children of the marriage, born on 10 February 1975, 14 March 1977 and 11 April 1980.
On 31 May 2000 the applicant applied for widows’ benefits. He was finally refused by the Appeal Tribunal on 6 July 2000.
The applicant is a British national who was born on 28 December 1945 and who lives in Leeds. He is represented before the Court by Ms J. Starling, T.V. Edwards solicitors, London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 27 June 1984. There was one child of the marriage, born on 1 July 1981.
On 1 February 2001 the applicant made an application for survivors’ benefits. He was informed by a letter dated 13 February 2001 that his claim had been refused.
The applicant is a British national who was born on 19 November 1944 and who lives in Wigan. He is not represented before the Court. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 12 November 1988. There was one child of the marriage, born on 7 December 1972.
On 9 May 2001 the applicant claimed widows’ benefits. His claim was disallowed on 25 May 2001. The applicant appealed and his appeal was refused on 27 September 2001.
The applicant is a British national who was born on 19 April 1949 and who lives in Colchester. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 28 August 1992. There were two children of the marriage, born on 20 January 1979 and 12 May 1980.
Shortly after his wife’s death, Mr Blackwell made a telephone enquiry to the Benefits Agency about survivors’ benefits, but was informed that such benefits were not available for men. On 13 October 2000 he made a formal application for survivors’ benefits. He was informed on 31 October 2000 that his claim had been refused.
The applicant is a British national who was born on 1 November 1953 and who lives in Stockport. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 30 September 1992. In May 2001 he claimed Bereavement Benefits from his local Benefits Agency. He was informed by a decision dated 25 May 2001 that there was no entitlement to Widowed Parents Allowance because he was no longer in receipt of child benefit, and by a decision dated 6 June 2001 that his claim for Bereavement Payment had been refused because his spouse had died before 9 April 2001, the date of the introduction of Bereavement Benefit.
The applicant is a British national who was born on 30 June 1944 and who lives in Bampton. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 18 November 1983. There were two children of the marriage, born on 14 October 1971 and 14 December 1977.
After his wife’s death, the applicant enquired about survivors’ benefits, and he was informed on 23 August 2000 that he was not entitled because he was a man. The applicant appealed and his appeal was finally refused on 25 January 2001.
The applicant is a British national who was born on 30 March 1944 and who lives in Blackburn. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 22 September 1983. There were two children of the marriage, born on 30 January 1965 and 1 February 1968.
After his wife’s death, the applicant enquired about survivors’ benefits, and he was informed that he was not entitled because he was a man. He made a formal application on 5 December 2000 which was refused on 8 December 2000.
The applicant is a British national who was born on 8 February 1950 and who lives in Loughton. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 3 October 1994. He made an application for survivors’ benefits on 6 July 2001, which was refused on 27 July 2001. At the time of his application to the Benefits Agency he was not in receipt of child benefit.
The applicant is a British national who was born on 30 August 1941 and who lives in London. He is represented before the Court by Royds RDW, solicitors practising in London. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 29 September 1985. He made an application for survivors’ benefits on 15 February 2002, which was refused on 20 February 2002. At the time of his application to the Benefits Agency he was not in receipt of child benefit.
The applicant is a British national who was born on 8 February 1945 and who lives in Ayrshire. He is not represented before the Court. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 26 August 1980. His youngest child was born on the same day.
Two weeks after his wife’s death the applicant claimed widows’ benefits and was refused. He made a second, formal application on 30 September 2002 which was finally refused on 26 June 2003.
The applicant is a British national who was born on 28 June 1940 and who lives in Bristol. He is represented before the Court by Mr N. Arnott, Avon and Bristol Law Centre. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 8 September 1974. There were two children of the family, born on 14 July 1970 and 23 October 1971.
A year after his wife’s death, and again in January 1976, the applicant enquired about survivors’ benefits and was told that such benefits were not available to men. He made a formal application on 5 March 2002 which was finally refused on 23 March 2003.
The applicant is a British national who was born on 28 November 1960 and who lives in Tredegar. He is represented before the Court by Mr W. Palmer, Speakeasy Advice Centre, Cardiff. The Government are again represented by Mr C. Whomersley.
The applicant was widowed on 14 March 1996. There were two children of the family, born on 28 October 1984 and 3 March 1987.
Shortly after his wife’s death the applicant enquired about survivors’ benefits and was told that such benefits were not available to men. He made a formal application on 30 May 2002 which was finally refused on 9 July 2003.
The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-91616
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MUHLE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Ms Gerlinde Mühle and Mr Gerhard Mühle, are German nationals who were born in 1954 and 1955 respectively and live in Dresden. They were represented before the Court by Mr T. Purps, a lawyer practising in Potsdam.
In 1983 the Dresden City Council (Rat der Stadt Dresden) granted the applicants permission to build a house on 411 square metres of public land. On 15 November 1983 the house-owners’ right of use (dingliches Nutzungsrecht) was registered in the land register.
On 23 May 1990 the applicants requested the sale of the property by the City of Dresden (“the City”) in accordance with the Act of the GDR Parliament (Volkskammer) on the Sale of Public Property.
On 15 September 1993 the City was registered as the owner of the land in the land register.
On 30 April 1997 the City and the applicants agreed on the terms of the sale of the property before a notary public. The parties agreed on the purchase price of 2,055 German marks (DEM – 1,050.70 euros (EUR)), corresponding to the value of the land (Bodenwert) in 1990, in accordance with the City’s practice regarding requests for sale made prior to 30 June 1990 by those who had legally built their houses on public land. The value of the land was estimated at DEM 92,175 (EUR 47,128.33) in 1998.
The sale could only take effect once approved by the supervisory administrative body, as required by section 120 of the Saxony Municipal Act (see “Relevant domestic law and practice” below), and on 27 January 1999 the City requested that the sale be approved by the Free State of Saxony, represented by the Dresden Regional Council (Regierungspräsidium Dresden – “the Regional Council”). On 3 March 1999 the City informed the Regional Council that the difference between the purchase price and the value of the land would not be accounted for in the City’s budget. On 26 March 1999 the Regional Council refused to approve the sale. The Regional Council noted that a municipality was entitled to sell land below the market price in order to further the acquisition of private property in accordance with section 90(3), point (1), of the Saxony Municipal Act (Sächsische Gemeindeordnung – see “Relevant domestic law and practice” below), but, referring to a decree of the Ministry of the Interior of the Free State of Saxony of 22 April 1996, found that a sale in the present case would have an adverse effect on the municipal budget.
On 26 July 1999 the Regional Council dismissed an objection by the applicants.
On 8 May 1999 the Dresden Administrative Court (Verwaltungsgericht) ordered that the sale of the property be approved, noting that in accordance with section 90(3), point (1), of the Saxony Municipal Act taken in conjunction with section 61(1) and section 68(1) of the Property Law Reform Act (Sachenrechtsbereinigungsgesetz – see “Relevant domestic law and practice” below), the sale price should be set at half the value of the land but reasonable reductions might be granted in appropriate circumstances.
On 27 January 2004 the Bautzen Administrative Court of Appeal (Oberverwaltungsgericht) reversed that decision and dismissed the applicants’ claim, holding that the refusal to approve the sale had been lawful as the conditions of section 90(3), point (1), of the Saxony Municipal Act had not been met. The applicants had no right to have the sale approved in view of the Dresden Regional Council’s approval of similar sales prior to the decree of 22 April 1996; only prior lawful administrative actions could give rise to a right to be treated alike, not approvals of contracts in violation of section 90 of the Saxony Municipal Act. The court noted that the applicants could either buy the property for half of the value of the land or reach an agreement with the City on another reasonable reduction of the purchase price; therefore the core of their property rights had not been impaired.
On 5 August 2004 the Federal Administrative Court refused leave to appeal on points of law because the matter was not of fundamental importance and the lower courts had not committed procedural errors.
On 30 November 2004 the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for examination (no. 1 BvR 2113/04).
Section 90 of the Saxony Municipal Act provides, inter alia:
“(1) A municipality may sell assets if it does not need the assets to fulfil its obligations and if the sale does not conflict with the interests of general welfare. Assets shall be sold for their full value. The municipality may grant reasonable reductions on the purchase price of freehold apartments and real property on the basis of social considerations to further the acquisition of private property.
(3) Legal transactions by which the municipality undertakes
1. to sell real property or similar rights ... require the approval of the supervisory administrative body.”
Section 120 of the Saxony Municipal Act provides that legal transactions that require approval have no legal effect until approved; if the approval is refused, the legal transactions are void ab initio.
Section 61 of the Property Law Reform Act provides, inter alia, that the owner of a house that has been legally built on public property may sue the owner of the land with a view to obtaining acceptance of an offer to purchase it. Section 68(1) of the Property Law Reform Act provides that the purchase price must be half of the value of the land.
Sections 8(1) and (1)(a) of the Act on the Identification of the Allocation of Former Public Property provide that municipalities may sell real property that is still listed as public property in the land register without it being subject to restrictions on the sale of municipal real property.


ITEMID: 001-109750
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PEKASLAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicants were born in 1961, 1972, 1985, 1956 and 1962 respectively and live in Malatya.
6. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in section B below (paragraphs 7-13). The Government’s submissions concerning the facts are summarised in section C below (paragraphs 14-20). The documentary evidence submitted by the applicants and the Government is summarised in section D (paragraphs 21-41).
7. On 8 March 2005 the applicants took part in International Women’s Day celebrations in the city of Malatya, during which a group comprising hundreds of police officers formed a cordon around the crowd. The police chief warned the participants that no prior permission had been obtained for the gathering.
8. The first applicant, Ms Nihal Pekaslan, who was a spokesperson for the Women’s Democratic Platform, told the police chief that they were exercising their constitutional right and that the applicable legislation required no prior permission.
9. Police officers then dragged a number of persons, including four of the applicants, into waiting police vehicles. In the course of so doing, the police officers sprayed the crowds with tear gas and hit some of them, including the four applicants.
10. The second applicant, Ms Refika Meltem İspir, was not arrested. She was not beaten up, but was sprayed with tear gas. She was accompanied by her eleven-year-old daughter and her mother, both of whom were also sprayed with tear gas.
11. The ill-treatment continued in the police vehicles. Male police officers started squeezing the arms and legs of the detained women. When the women told the police officers that they had no right to behave like that and asked for female police officers to accompany them, they were sworn at. The episode in the police vehicles lasted for approximately twenty minutes.
12. The four applicants were then taken to a police station and subsequently to the Forensic Medicine Institute for a medical examination. According to the medical reports drawn up that day, the four applicants who had been hit by the police officers had a number of injuries on their bodies, rendering them unable to work for periods of between one and three days.
13. Later that same day the four applicants were released from police custody.
14. On 8 March 2005 the applicants took part in International Women’s Day Celebrations in Malatya where three different groups of demonstrators were carrying placards, flags and posters, and holding demonstrations which hindered the flow of traffic.
15. A group of police officers tried to convince the group to disperse, and requested them to hold their demonstrations without impeding the circulation of the traffic. A police chief warned the participants that no prior permission had been obtained for the gathering, but told them that they could carry on with their demonstration on the pavement and walk in an orderly manner without violating public order. Nevertheless, the group, including the applicants, refused to disperse and continued with their demonstration.
16. The police chief made several unsuccessful attempts to tell the participants that the manner in which they were conducting their demonstration was unlawful because they were impeding the flow of traffic. The police chief also told the participants that they could leave their placards – which were too large – and walk on the pavement; the placards would be returned to them later.
17. The group insisted on blocking the street and continued with their demonstration. In spite of the police officers’ warnings and efforts, the group shouted slogans and continued to protest. Meanwhile, ten to fifteen police officers formed a cordon around the participants who had been giving orders to the rest of the demonstrators. The demonstrators inside the police cordon continued to protest, saying that they would not end the illegal demonstration even if they were arrested.
18. Police officers then put a number of persons, including four of the applicants, into the waiting police vehicles by force which could not be considered disproportionate. They were taken to the Malatya Court House. On the way to the court house the applicants insulted the police officers present in the vehicle and tried to provoke them. However, the police officers kept their calm. Female demonstrators were accompanied by female police officers in the vehicle.
19. The remaining members of the group who had not been arrested continued with their demonstration and read out their press release after having complied with the police officers’ request to fold their placards and walk on the pavement.
20. The Government submitted the video footage of the incident to the Court, and argued that the footage supported their submissions summarised above.
21. The following information emerges from the documents submitted by the parties.
22. According to a report signed by eighteen police officers, at 2.00 p.m. on 8 March 2005, police received intelligence that a number of non-governmental organisations were planning to gather at the junction of Milli Egemenlik Street with a view to marching from there to the square outside the post office. The police put in place all necessary security measures at the junction at 11.00 a.m. and the demonstrators began arriving at midday.
23. The police officers unsuccessfully urged the demonstrators not to march with their placards to the square, where a press release was scheduled to be read out. When the demonstrators ignored the police and started marching, thus blocking a main road, the police officers had to use force to arrest the applicants – with the exception of the second applicant, Ms Refika Meltem İspir – and five other demonstrators because they resisted arrest and insulted the police officers.
24. According to another police report drawn up on the same day, the arrested persons behaved in a rowdy manner while they were being transported to the court house in a vehicle. They also insulted the police officers present in the vehicle by shouting things such as “Who do you think you are? You have no right to behave like this. Shame on you, are you going to tell your children that you are torturers?”.
25. The Government submitted to the Court the video footage of the incidents recorded by police officers. However, the part where the police officers used force and arrested the applicants does not feature in the footage. The footage begins with the police officers trying to persuade the demonstrators to leave their placards behind, and then resumes with the demonstrators protesting against the use of force by the police officers and asking for their arrested friends to be released.
26. It can be seen from the footage that before they were arrested the applicants drew the police officers’ attention to a circular issued by the Ministry of the Interior on 11 June 2004. In the circular, a copy of which was made available to the Court by the applicants, the Ministry urges police officers to respect certain rights and freedoms, including freedom of expression and assembly, and reminds them that those rights and freedoms can only be restricted in limited circumstances. In the circular, police officers are also urged to show restraint when faced with demonstrations, and to use their powers to promote the rights of civil society.
27. On the same day the four arrested applicants were examined by doctors at the local branch of the Forensic Medicine Institute. The details of their injuries, as noted in the medical reports, are as follows:
Ms Nihal Pekaslan: four ecchymosed areas measuring between one and five centimetres, and grazes on both forearms and on the left hand. Her injuries prevented her from working for three days.
Ms Kıvanç Pekaslan: an ecchymosed area measuring 2 x 2 centimetres on the inside of the right arm, which prevented her from working for one day.
Mr İbrahim Bozay: two ecchymosed areas, each measuring 1 x 1 centimetre, on the forehead, and two ecchymosed grazes on one of the fingers of the right hand and on the right forearm, measuring 1 x 1 and 2 x 2 centimetres respectively. These injuries prevented Mr Bozay from working for one day.
Ms Leyla Bozay: Ms Bozay told the doctor that she had been hit on the nape of the neck and that her hair had been pulled. The doctor observed two ecchymosed areas measuring 1 x 1 and 2 x 1 centimetres on the insides of both arms, which prevented her from working for one day.
28. On 10 March 2005, at 2.40 p.m., the first applicant, Ms Nihal Pekaslan, was examined by another doctor at the Malatya State Hospital, who observed two ecchymosed areas measuring 15 x 15 centimetres on her arms, and various other ecchymosed areas on her knee and hand. According to the doctor, the injuries had been caused some thirty-six to forty-eight hours previously.
29. On 8 March 2005 the second applicant, Ms Refika Meltem İspir, lodged an official complaint with the prosecutor against the police officers who, she alleged, had sprayed her and her daughter with tear gas. On the same day Ms İspir orally informed the prosecutor that she would recognise the police officer who had sprayed her and her daughter with tear gas. When, some thirty-five days later, she was asked by the investigating police officer whether she would be able to identify the police officer responsible, she stated that she had only seen him once and then only for a few seconds, but that had they asked her immediately after the incident she would have been able to recognise him.
30. On 11 March 2005 the remaining four applicants lodged an official complaint with the prosecutor against the police officers allegedly responsible for the ill-treatment. They complained, inter alia, that they had been beaten up and assaulted while exercising their right to freedom of expression and assembly. They also referred to Articles 3 and 10 of the Convention.
31. On 16 March 2005 a police chief in Malatya sent a verbatim transcription of the video footage of the incidents to the Malatya prosecutor.
32. Between 4 April 2005 and 3 May 2005 the Malatya prosecutor took statements from eighteen police officers who had been on duty on the day of the incidents. A police chief told the prosecutor that female demonstrators had attacked the police and that the police had had to use force in response. He maintained that the force used by the police had been proportionate.
33. Four of the police officers told the prosecutor that the demonstrators had blocked the street and that the police had had to arrest them. While they were arresting the demonstrators there had been scuffles and the demonstrators had attacked the police officers with sticks. The police officers had had to use force, as a result of which the demonstrators might have suffered minor injuries.
34. The remaining thirteen police officers’ statements concerned solely the complaints made by the applicants regarding the alleged assaults by male police officers on their way to the court house. These officers denied that the demonstrators had been assaulted in the police vehicles. They also added that the arrested persons had been accompanied by female officers in the vehicles.
35. On 18 April 2005 the prosecutor examined the video footage submitted to his office by the police, and recorded his findings in a report. In the opinion of the prosecutor, the demonstrators had tried to break the police cordon and march. The police officers had not behaved in an arbitrary manner and the use of force by them had not been excessive.
36. On 12 May 2005 the Malatya prosecutor decided not to prosecute the police officers. In his decision the prosecutor stated that the second applicant, Ms İspir, had been unable to recognise the police officer who had sprayed her with tear gas. The prosecutor stated that the applicants had gathered in the area without having sought prior permission. In dispersing the unauthorised demonstration, the police officers had been impelled to resort to the use of force in order to apprehend the applicants because they had resisted arrest and insulted them. In the opinion of the prosecutor, other than the applicants’ unsubstantiated allegations, there was no evidence justifying the prosecution of the police officers.
37. The applicants lodged an objection against the prosecutor’s decision. They argued, in particular, that although they had not resisted arrest, the police officers had proceeded to arrest them by using force. The applicants also maintained that they had tried to exercise their right to freedom of expression, which was guaranteed by the Constitution as well as by Article 10 of the Convention. They also pointed out that, according to the applicable legislation, no prior permission was necessary to hold demonstrations. Moreover, the police officers had acted contrary to the circular issued by the Ministry of the Interior (see paragraph 26 above), and their actions had also been in breach of Article 3 of the Convention.
38. The objection filed by the applicants was rejected by the Elazığ Assize Court on 28 July 2005. That decision was communicated to the applicants in September 2005.
39. On 8 March 2005 four of the applicants – that is, all the applicants with the exception of the second applicant, Ms Refika Meltem İspir – were questioned by the Malatya prosecutor as suspects. They told the prosecutor that before they could even begin their demonstration the police had arrested them without warning and, in the course of doing so, had hit them. They denied that they had insulted the police officers. Lawyers representing the applicants told the prosecutor that the arrests had been arbitrary and in breach of their clients’ fundamental rights and freedoms under the Convention, including the prohibition of torture. The lawyers added that their clients had been exercising their democratic rights and had not committed any offences.
40. On the same day, the Malatya prosecutor filed an indictment with the Malatya Criminal Court of First Instance and brought criminal proceedings against the four applicants, as well as against the remaining five persons who had been arrested together with the applicants, for insulting the police officers and contravening the Meetings and Demonstration Marches Act (Law no. 2911).
41. On 2 June 2005 the Malatya Criminal Court of First Instance acquitted the four applicants and the remaining defendants. It held that there was no evidence to show that the four applicants had put up resistance against the police officers.
VIOLATED_ARTICLES: 11
3
VIOLATED_PARAGRAPHS: 11-1