Preliminary objections dismissed (Article 34 - Locus standi;Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Erik Møse;Ganna Yudkivska;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Nebojša Vučinić;Nona Tsotsoria;Paul Mahoney;Paulo Pinto De Albuquerque

The applicant was born in DATE on the island of GPE . In DATE , while serving a sentence of life imprisonment in a prison in GPE , he was diagnosed with terminal cancer . In DATE he was transferred from the prison to a nursing home in LOC . On DATE he was granted a pardon ( gratie ) entailing his immediate release . He returned to GPE , where he passed away on DATE .

At the time the applicant was convicted and sentenced , GPE consisted of the GPE ( the Realm in LOC ) and GPE ( consisting of the islands GPE , GPE , GPE , GPE , PERSON and GPE ) . On GPE , the Head of State of GPE , at that time ) was represented by a Governor . In DATE GPE became an autonomous “ country ” ( land ) within the GPE , having its own Governor . From DATE GPE ceased to exist other than as a collective name for the CARDINAL islands in LOC belonging to GPE . GPE currently consists of CARDINAL autonomous countries : the GPE ( i.e. the Realm in LOC ) , GPE , GPE and PERSON , whereas GPE , PERSON and GPE are special municipalities of the GPE . Each of the CARDINAL island countries ( GPE , GPE and PERSON ) has a Governor .

The countries of the GPE have their own legal systems , which may differ from each other .

The Joint Court of Justice of GPE , which imposed the life sentence on the applicant in DATE , became ORG of GPE and GPE in DATE , and is currently called ORG of GPE , GPE , PERSON and of GPE , PERSON and GPE . For ease of reference it will hereafter generally be referred to as “ ORG of Justice ” .

NORP On DATE ORG ( PERSON in PERSON ) of GPE found the applicant guilty of the murder of a DATE girl on the island of LOC . The judgment of ORG included a summary of a psychiatric report that had been drawn up at the request of the public prosecutor ( PERSON ) . The conclusion reached by the psychiatrist was summarised as follows in the judgment ( the conclusion and advice contained in the psychiatrist ’s report are set out in full in paragraph CARDINAL below ) :

“ ... That the defendant suffers from a pathological disturbance , in particular a very limited development of his mental faculties ... Considering this , the defendant should be regarded as having diminished criminal responsibility ( verminderd toerekeningsvatbaar ) , but nevertheless should mainly be held criminally liable for his actions . It is noted in particular that the defendant can not be considered to have been mentally insane before , during or after the commission of the crime ... Even though the defendant is capable of committing a similar offence in the future , it is not necessary to commit him to a regular mental hospital ( krankzinnigengesticht ) , but instead he should be placed in a custodial clinic for psychopaths ( psychopatenasiel ) to undergo a rather lengthy treatment under very strict surveillance . In GPE there is a choice only between prison and the national ( regular ) mental hospital ( PERSON ) . Taking into consideration that the risk of recidivism is for the time being very high , even if treatment would possibly start immediately , and that , consequently , intensive surveillance is of primordial importance ( such surveillance being impossible in the national mental hospital ) , and the fact that the defendant is not to be considered criminally insane within the meaning of the law , admission to the national mental hospital is wholly contra - indicated . The sole option remaining is for him to undergo his punishment in prison ( transfer to a custodial clinic in the GPE is impossible on account of the defendant ’s limited intelligence and insufficient ability to express himself verbally ) . It is strongly advised that , where possible in the prison setting , an attempt should be made to attain a stronger personality structure in the defendant in order to avoid recidivism in the future . ”

The First Instance Court considered that a life sentence , the imposition of which had been sought by ORG , would only be condign punishment if it was established from the outset that the applicant ’s condition was not amenable to improvement . As the court found that this could not be deduced from the psychiatrist ’s report , it sentenced the applicant to DATE imprisonment .

Both the applicant and ORG ( Openbaar Ministerie ) submitted an appeal against the judgment of ORG .

On DATE ORG of Justice of GPE quashed the judgment of ORG . It convicted the applicant of murder , finding it proven that he had deliberately and with premeditation taken the life of the DATE girl . It held that he had conceived the intention and taken the decision to kill her after calm consideration and quiet deliberation , and in order to execute that intention , had stabbed her repeatedly with a knife , as a result of which she had died . The applicant had killed the child , who was the niece of an ex - girlfriend , in revenge for the latter ’s ending of their relationship . ORG of Justice sentenced the applicant to life imprisonment . In this connection it cited part of the psychiatrist ’s report as summarised in the judgment of ORG ( see paragraph CARDINAL above ) and furthermore held , inter alia , as follows :

“ Considering that in view of the findings of the psychiatrist , which the court accepts and adopts as its own , and in particular the fact that the risk of recidivism is very significant , the interest of society in being protected against any such recidivism should , in the opinion of the court , carry the most weight , having regard to the personality of the accused ;

Considering that − however regrettable − there is no possibility in GPE for the imposition of a ORG order ( terbeschikkingstelling met bevel tot verpleging van overheidswege ) for confinement in a custodial clinic , which would be the most appropriate measure in this case ; that placement in a custodial clinic in the GPE in similar cases has in the past proved impracticable – as is known to the court ex officio DATE and is in the present case moreover considered impossible by the psychiatrist due to the accused ’s limited intelligence and insufficient ability to express himself verbally ;

Considering that in the present case there is no way in which the aforementioned preponderant interest can adequately be protected in these lands other than through the imposition of a penalty which will prevent the accused ’s return to society , and thus that only a sentence of life imprisonment qualifies as suitable ;

Considering that the court is aware that this sentence does not – in principle – provide the accused with any prospect of DATE returning to society as a free man , a fact which will presumably make this sentence heavier to bear for the accused than a temporary sentence of imprisonment , but which in the court ’s opinion should not lead to the aforementioned interests , which , as set out above , should carry the most weight , being sacrificed ;

... sentences the accused to imprisonment for life ;

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal in cassation against the judgment of ORG .

On DATE the applicant filed a request for revision with ORG of Justice which was rejected on DATE .

The applicant served DATE of his sentence in the PERSON prison ( which was subsequently renamed ORG and is currently called GPE di ORG or ORG ) in GPE . This prison has , since DATE , accommodated a special unit for prisoners showing signs of mental illness or serious behavioural disorders , the so - called ORG and ORG ( ORG Begeleidings DATE “ FOBA ” ) . The FOBA comprises CARDINAL separate sections , CARDINAL for observation and CARDINAL for treatment . Although the applicant submitted that he had spent some time in the observation section , the Government stated during the hearing before FAC on DATE that while he was detained in GPE the applicant had not been placed in either unit .

The applicant ’s first DATE in prison were marked by incidents : fights , extortion , drug abuse , etc . , some of which led to periods spent in solitary confinement .

On DATE the applicant was transferred to ORG ( “ ORG ” – also referred to as FAC or “ ORG ” ) in GPE , having repeatedly requested such a transfer from DATE , in order to be closer to his family . At the same time the responsibility for the execution of the applicant ’s sentence was transferred from the authorities of GPE to those of GPE . By agreement of DATE the Minister of ORG of GPE , however , made the transfer conditional , stipulating that any measure ( e.g. pardon , reduction of sentence , temporary leave ) involving the applicant ’s release from prison would be subject to the consent of ORG .

In the course of his incarceration the applicant unsuccessfully petitioned for a pardon on a considerable number of occasions ; the exact number can not be ascertained since the files are no longer complete owing to the lapse of time . From the information and documents contained in the ORG ’s case file , the following events can be established .

In a letter of CARDINAL DATE the applicant requested that the Minister of ORG of ORG review his life sentence and give him some kind of relief . He submitted that the prison where he was being detained offered no educational or vocational programme capable of benefitting his personal and mental development , whereas the frustration and disappointment of being isolated and neglected was creating mental anguish that would surely drive him to the brink of mental illness . This request was rejected by the Governor of GPE on CARDINAL DATE for the reason that there were no grounds on which to grant it .

A request lodged on an unknown date was rejected on CARDINAL DATE . It appears that the applicant also lodged requests on DATE , CARDINAL DATE and CARDINAL DATE but no further information has been provided about them .

NORP The case file contains a number of documents ( hereinafter called “ consultation sheets ” ) on which each of the CARDINAL judges , who were consulted before ORG issued its advice to the Governor on a particular application for pardon , could write their opinion about that application . CARDINAL of the judges consulted about the applicant ’s request for a pardon of DATE wrote as follows in DATE :

“ ... It can be deduced from the psychiatric report in the file that the risk of recidivism was deemed great . The psychiatrist considered that treatment of the petitioner in prison was indicated , but nothing has of course come of this . I still find that it would be irresponsible to grant a pardon to the petitioner , who has in the meantime reached DATE . ... ”

A second judge wrote on the consultation sheet that he agreed with his colleague , and that a new psychiatric report might be requested , which could also be important for the future in order to be able to monitor the applicant ’s development and in due course perhaps advise positively on a request for a pardon .

In a letter of CARDINAL DATE ORG of Justice advised the Governor not to grant a pardon , writing , in so far as relevant , as follows :

“ ... It appears from the psychiatric report in the file that the petitioner has very inadequately developed mental faculties ... In said psychiatric report it is concluded that the petitioner is certainly capable of committing the same offence or of disrupting public order in a different way . The court notes that the petitioner has not undergone any ( psychiatric ) treatment in prison aimed at strengthening his personality structure in order to prevent him reoffending in the future .

As the crime committed by the petitioner shocked the legal order so profoundly , the granting of a pardon would not be understood by the community , not even after such a long time .

Having regard to the foregoing the court is of the view that for the time being it would be irresponsible to pardon the now CARDINAL-year - old petitioner .

ORG has attempted , so far in vain , to bring about the petitioner ’s transfer to the ORG in GPE , in accordance with his wishes , in view of the fact that he has relatives living there . This wish of the petitioner ought now to be acted upon . The court therefore supports this reasonable desire of the petitioner . ”

The request for a pardon was refused on DATE .

On DATE the Acting Governor of ORG rejected the applicant ’s request of ( probably ) DATE to reduce his sentence by means of a pardon , considering that no facts or circumstances justifying such a course of action had either been adduced or become apparent .

On DATE the Advocate General of GPE wrote , in so far as relevant , as follows to ORG in relation to the applicant ’s request for a pardon lodged on DATE :

“ ... The opinion of ORG is unchanged . Prior to committing the offence at issue the suspect [ sic ] had been convicted of raping a young girl and sentenced to imprisonment . That sentence did not have a preventative effect on the petitioner . The petitioner was extensively examined in relation to the offence at issue and the extensive report explicitly mentions the risk of recidivism . It does not appear that the circumstances have changed .

... The granting of a pardon on humanitarian grounds will , even if such reasons can be said to exist ( quod non ) , not be understood by society nor , in my view , be accepted . Humanitarian grounds may be said to have been the basis for the transfer to the ORG . As far as I am concerned that is sufficient . ”

CARDINAL of the judges of ORG , while subscribing to the negative advice given by ORG , wrote on the consultation sheet :

“ At some point in time a moment will however arrive when mercy comes before law . That moment has not been reached yet , but it may do in DATE . ”

ORG advised that the applicant ’s request be refused on the grounds indicated in the advice of ORG of DATE .

The Procurator General , in a letter to ORG of Justice of CARDINAL DATE , recommended that that court issue negative advice on the application for a pardon lodged by the applicant on DATE . He wrote , in so far as relevant , as follows :

“ ... Having regard to the content of his request for a pardon together with the interview with him that was recently broadcast on television , the petitioner obviously still does not , in my opinion , realise the gravity of the diabolical act committed by him on DATE . ...

In the interview ... PERSON also had the nerve to play down his heinous crime by saying that others who had already been released had committed more serious offences . ...

The petitioner has never DATE either at the trial , on the delivery of the verdict , or in the aforementioned interview – shown remorse . ...

PERSON claims that he has behaved like a model prisoner in the course of DATE . Nothing could be further from the truth ; in any event , not as regards the period of detention spent in prison here [ i.e. in GPE ] . During DATE the petitioner has misbehaved numerous times , inter alia by issuing threats , committing thefts , fighting with fellow inmates , committing indecent acts with third parties , and attempting to poison a fellow inmate . ...

Although he may lately have displayed good behaviour , this does not detract from the fact that the consequences of his demonic deed can never be redressed , while it has appeared , also in view of the recent reactions in our community , that society remains deeply shocked . Our society can not afford to take any risks with such a murderous psychopath . In order for our community ’s interests to be adequately protected , the return of the petitioner to that community is to be prevented . In my opinion it can not be excluded that this solidly built CARDINAL-year - old man , with his serious criminal behaviour ... , and currently in the prime of his life , will once again reoffend .

The above - mentioned interview as well as the fact that he ( even though he is entitled to do so ) has once again seen fit to lodge a request for a pardon for the umpteenth time has caused great commotion in our society . Anxious civilians , also including relatives of the victim , have fiercely protested in the media against a possible pardon . ...

The opinion , voiced occasionally , that a life sentence in practice boils down to a sentence of DATE is not based on LAW and does not find support in law either . The NORP legislator has also never intended for this to be the case . ... ”

The request for a pardon was rejected by the Governor on DATE for the reason that no facts or circumstances justifying a pardon had either been adduced or become apparent .

In a letter of CARDINAL DATE ORG of ORG advised the Governor to reject a request for a pardon lodged by the applicant as there was no appearance of any circumstance which the trial court had failed or had been unable to take ( sufficiently ) into account at the time of its decision and which , had the court been sufficiently aware of it , would have caused it to impose a different sentence or to refrain from imposing any sentence . Neither had it become plausible that the execution of the trial court ’s decision or its continuation did not reasonably serve any of the aims pursued through the application of the criminal law .

The petition for pardon to which this advice of ORG of ORG related was rejected by the Governor , on the grounds set out in that advice , on DATE .

In DATE the CARDINAL judges consulted about a request for a pardon submitted by the applicant on DATE wrote on the consultation sheet , respectively , “ no grounds present ” , “ reject ” and “ reject ” .

On DATE the applicant requested a pardon in view of his deteriorating health . The head of the social work department of the prison in GPE advised that a pardon be granted , as this would allow the applicant to die in a dignified manner in the presence of his family . By a decision of DATE the Governor of GPE acceded to this request and granted the applicant a pardon ( see also paragraph CARDINAL above ) , entailing the remission of his prison sentence , as in the circumstances the further execution of that sentence was no longer deemed to serve a useful purpose .

On DATE ORG , having submitted the applicant ’s life sentence to the periodic review prescribed by Article TIME of LAW , which had entered into force on DATE ( see paragraphs CARDINAL below ) , decided that the applicant ’s custodial sentence still served a reasonable purpose after DATE .

The decision of ORG of Justice firstly sets out the proceedings which took place before that court : hearings had taken place on DATE and DATE , at which the applicant , who was represented by counsel , was heard . A member of staff of the prison in GPE was also heard , as were the psychologist PERSON , the psychiatrist PERSON and relatives of the victim and their representative . The decision cites relevant parts of the sentencing court ’s judgment of CARDINAL DATE and summarises the findings contained in the reports drawn up about the applicant for the purpose of the periodic review ( see paragraphs DATE below ) . A section entitled “ The position of the relatives of the victim ” reads as follows :

“ The relatives indicated at the hearing that they did not agree with a possible release of the convicted person . They stated that news of a possible release had reopened old wounds , that they were experiencing the psychological consequences of this , and that they were afraid of the convicted person . He has threatened them in the past and they have not observed any feelings of remorse or regret in him .

The relatives’ representative submitted that the risk of recidivism was unacceptable for them .

In a report drawn up by ORG for Probation and ORG of CARDINAL DATE the Rapporteur addresses the position of the relatives . The ORG notes in the first place that the relatives have so far barely been provided with psychological help or with support in coming to terms with their bereavement . He concludes that the victim ’s mother still appears to struggle with issues she has not dealt with and about which she barely speaks , and that the father requires professional help in order to cope with his feelings . The relatives have told the Rapporteur that they feel insecure at the mere thought of the convicted person being released . They have further indicated that ever since the arrest of the convicted person and until the present time they have been ‘ living in a prison’ and that this has also had adverse repercussions on their other children . ORG concludes that a possible conditional release of the convicted person would at this stage have far - reaching psychological consequences for the relatives . ”

The decision goes on to observe that , in the acting Procurator General ’s submission , there was not a single objective indication from which it could be inferred that the risk of the applicant ’s committing an offence had disappeared or diminished , that an early release would seriously shock the surviving relatives , and that it would also shock society to such an extent that this would hinder the applicant ’s possible reintegration . After describing the position put forward on behalf of the applicant , ORG then came to its assessment , which , in so far as relevant , reads as follows :

CARDINAL NORP The convicted person ’s deprivation of liberty has at present lasted considerably more than twenty years , namely QUANTITY years . The court must therefore assess whether the further unconditional execution of the life sentence no longer serves a reasonable purpose .

CARDINAL.CARDINAL It follows from the reasons given by the [ sentencing ] court for the imposition of the life sentence ... that the aim of this sentence was to protect society against recidivism by the convicted person . The risk of recidivism was deemed by the [ sentencing ] court to be particularly high , while treatment was not considered possible .

CARDINAL LOC court will therefore first and foremost have to assess to what extent the risk of recidivism existing at the time is still present DATE . In this connection it is firstly to be noted that at the time that risk was deemed to be particularly high in view of the personality of the convicted person , and that since then no treatment in any shape or form has taken place .

CARDINAL NORP After the court had commissioned CARDINAL experts at its hearing of CARDINAL DATE , psychologist PERSON and psychiatrist PERSON reported on the convicted person ’s personality and the risk of recidivism . Unlike the defence , the court is of the view that both the examination carried out and the report drawn up by the psychologist are of adequate quality and expertise . ...

CARDINAL It appears from the ... findings of both experts that the convicted person is still suffering from a disorder , namely an antisocial personality disorder . The court deduces from the findings that this disorder has a negative bearing on the risk of recidivism and hampers possible reintegration into society . The court further considers that the nature of the offence committed by the convicted person – the killing of a DATE girl for the sole purpose of hurting her aunt , his former girlfriend DATE is bizarre and , as was concluded at the time , must be attributed to the psychopathically disturbed personality of the convicted person . The court notes that important aspects of that disturbed personality , such as the antisocial personality , the limited development of his conscience and the lack of empathy , are currently still present . No treatment has taken place during the period of detention . It is furthermore not the case , as would be customary within the framework of treatment , that the circumstances which led him to his deed have been discussed with him so that he might subsequently have acquired an insight into how to avoid or defy such circumstances . In the case of the convicted person it would have been expected that in the course of such discussions his relationship with women and the question of dealing with rejection would have been addressed . As already mentioned , no such discussions or treatment have taken place . Also , at the hearing the convicted person did not demonstrate that he was capable of holding himself to account for the seriousness and absurdity of the murder or of understanding how he was able to commit it .

CARDINAL NORP The foregoing leads the court to conclude that the risk of the convicted person ’s reoffending if he were released is such that the protection of society should prevail . This is not altered by the fact that the convicted person has been functioning well and without problems in prison in DATE . After all , and just as the experts have pointed out , prison life is very structured and circumstances such as those under which the convicted person committed his crime are absent there . Such circumstances may occur outside the prison and – having regard to the aforementioned personality and the fact that no treatment has taken place – the court considers the risk of the convicted person ’s reoffending if confronted with such circumstances to be too great .

CARDINAL LOC court further takes the position of the victim ’s relatives into account . It has been sufficiently established that conditional release would at the present time entail adverse psychological consequences for them . The court observes in this connection that over DATE the relatives have also not been provided with adequate support to help them come to terms with their grief or , if necessary , with treatment for their psychological problems . It is therefore easily understandable that they are very shocked now that the possibility of the convicted person ’s conditional release is being considered for the first time . In this context the court attaches relevance to the fact that after he committed his crime the convicted person threatened to harm the relatives and in this way contributed to their sense of insecurity . The convicted person has not demonstrated that he has any insight into the consequences of his deed or his subsequent actions .

CARDINAL On the basis of the foregoing , the court is of the opinion that the continued execution of the life sentence still serves a reasonable purpose . The court will accordingly not proceed to order the conditional release of the convicted person .

CARDINAL Having regard to the foregoing the court also perceives no cause to adjourn its examination pending further investigations , as requested by the defence as an alternative course of action .

CARDINAL NORP The court adds that it is aware of the fact that its considerations as set out under points CARDINAL and CARDINAL would appear to offer little prospect of release in the future , as this would imperatively require that in DATE some form of treatment should take place in which , in any event , aspects such as crime analysis , relationships and rejection would need to be addressed . Perhaps such treatment can be organised in some way in the [ prison in GPE ] . The court further considers that the position of the relatives may also be different at the time of a subsequent review if they continue to receive the necessary support in dealing with their feelings of mourning , anger and fear .

CARDINAL NORP The court finally notes that it has also had regard to the commotion which the possibility of a conditional release has caused in society and which has appeared from the submitted newspaper articles and the considerable public interest . A large part of the community perhaps thinks that the perpetrator of a crime such as the murder of [ the victim ] should never be allowed to regain his liberty . In the court ’s examination this has not , however , played a decisive role . After all , society ’s need for retribution should be considered to have been sufficiently assuaged after a period of detention of CARDINAL three years . As noted above , the aim of the continuation of that sentence is currently no longer retribution but the protection of society against possible recidivism .

The decision

The court :

does not proceed to order the convicted person ’s DATE conditional – release . ”

In the course of the criminal proceedings against him and at the request of the public prosecutor , the applicant was examined by psychiatrist J.N.S. in order to assess whether he could be held criminally responsible for the offence with which he was charged . The psychiatrist produced a CARDINAL report on DATE . ORG judgment of CARDINAL DATE includes a summary of the conclusion and advice contained in that report ( see paragraph CARDINAL above ) . The conclusion and advice as set out in the psychiatrist ’s report , reads , in so far as relevant , as follows :

“ Conclusion : In view of the above the Rapporteur reaches the following structure diagnosis : Serious criminal behaviour in the shape of a murder committed as a result of a primitive and primary outburst of emotions , by a retarded , infantile and narcissistic young man whose character structure has a serious disturbance of a psychopathiform nature .

Advice : The Rapporteur should wish to present his advice on the basis of the following questions :

Is the accused suffering from a pathological disturbance and/or an inadequate development of his mental faculties ?

Reply : Yes , he certainly is , and in particular from a very inadequate development of his mental faculties .

NORP Was this disturbance and/or inadequacy already present at the time of the offences with which he is charged ?

Reply : The inadequate development in particular has been present all his life , and therefore also at the time of the offences with which he is charged , although it may be said that everything had accelerated rapidly at that time .

If so , was this the case to such an extent that the accused , were he to be found guilty of the offences , should generally be considered , in the current state of ORG society , as not responsible for them or only to a greater or lesser extent ?

Reply : The Rapporteur would wish to conclude that the accused , having regard to the replies under CARDINAL . and CARDINAL . , should be considered as having diminished criminal responsibility , but he nevertheless still considers that the accused is for the most part responsible for the acts , if they are found proven , which he has committed . The Rapporteur should especially wish to conclude that he would not call the accused insane , either before , during or after the offence ; ... the accused has never withdrawn into a bizarre and mad world of his own but has always lived in a primitive , primary sensory world and he has succeeded , whenever his existence was not under stress , to participate in society to a reasonable extent .

At the time of the offences , did he have the insight to realise that committing them was morally reprehensible and would not be tolerated by society ?

Reply : According to the Rapporteur he must have had such insight , but he subsequently completely suppressed and replaced it by a fantasy in view of the threat of destruction of his own personality structure .

If he did have such insight , would he have been capable of determining his will and his actions accordingly ?

Reply : See the reply to question CARDINAL . Also partly because of that , the Rapporteur has reached a conclusion of diminished criminal responsibility .

Can it be expected that the accused might commit the same offence again or disrupt public order in a different manner ?

Reply : Having regard to what has been written and concluded above , the accused is certainly capable of committing a similar act or of causing a different disruption of public order .

Does his mental state require that the accused be committed to a lunatic asylum ?

Reply : In view of the reply to question CARDINAL it may be said that this is not necessary .

What practical guidelines can you give and/or what proposals that are feasible in DATE society can you make in order to improve or bring about a recovery and/or a better development of the accused ?

Reply : In view of the replies under CARDINAL , CARDINAL , DATE , DATE and CARDINAL my advice would be that the accused should be committed to a mental asylum where , certainly , during a fairly long period institutional treatment under very strict surveillance ought to take place . On GPE we have the choice only between prison and the national psychiatric hospital . Taking into consideration that for the time being the risk of recidivism is very great , even if treatment were to be commenced immediately , and that intensive surveillance is consequently of primordial importance ( such surveillance being impossible in the national psychiatric hospital ! ) as well as the fact that the accused is not to be considered insane within the meaning of the law , admission to the national psychiatric hospital is wholly contra - indicated . The sole option remaining is for the accused , should he be found guilty of the offences with which he has been charged , to undergo his sentence in prison ( a transfer to , for example , a mental asylum in the GPE is in my opinion not possible because of the accused ’s limited intelligence and insufficient ability to express himself verbally ) . The Rapporteur strongly advises that , if possible , attempts should be made in the prison setting to attain a stronger personality structure in order to avoid recidivism in the future . ”

On DATE psychiatrist PERSON wrote to the PERSON General in relation to the applicant ’s wish to be transferred to GPE . She stated that the applicant had been placed under psychiatric observation upon his arrival in the remand centre in GPE and that good contact of a therapeutic nature had been established with a view to his rehabilitation . The psychiatrist expressed her opinion that from a psychological point of view a transfer to GPE would benefit the applicant ’s rehabilitation .

NORP This psychiatric report was drawn up by PERSON at the request of ORG in relation to the applicant ’s request to be transferred to GPE . The psychiatrist found that the applicant was not suffering from any psychosis , depression or anxiety , but that he did have a serious narcissistic personality disorder . He concluded that there was no psychiatric reason why the applicant could not be transferred to GPE , and that , psychologically , such a transfer would probably be favourable for the applicant as his family was living there .

In anticipation of the periodic review of life sentences to be introduced in FAC , the Procurator General , in a letter of DATE , requested a psychiatric examination of the applicant .

On DATE psychologist J.S.M. stated as follows :

“ ... the results of the test show that [ the applicant ] is suffering from symptoms of depression . He pents up his emotions and anger and hides them from those around him . ... [ The applicant ] has little trust in other people . In his opinion people use and abuse each other in order to achieve their goals . That is why he is very distrustful of the people he encounters and displays antisocial behaviour . ... He is extremely sensitive to criticism and rejection .

[ The applicant ] has been detained for a very long time , and as a result his feeling of well - being has deteriorated . His social skills have similarly deteriorated and he has given up hope of his situation undergoing any change , which has resulted in [ the applicant ] having to cope with very negative and depressive feelings about himself and others .

[ The applicant ] requires support as regards his bottled - up negative and depressive feelings and in order to improve his general well - being .

My advice as regards a pardon is not to give [ the applicant ] false hope and to be clear about the aspects of his case .

If a pardon is applicable , it is recommended that [ the applicant ] follow a rehabilitation and social skills programme and that he be provided with support both inside and outside the ORG in order to promote his independence and functioning in society . ”

On DATE ORG and ORG ( PERSON en GPE ) issued a report , in which it was noted that the applicant could live with his mother on GPE and could work in an upholstery shop . The person who drew up the report found it difficult to estimate the risk of recidivism , but considered that with appropriate support following release his prospects of successfully integrating in society were good .

At the request of ORG of Justice CARDINAL reports were issued .

The first of these reports , which was issued by the ORG on CARDINAL DATE , included the following :

“ [ The applicant ] is a calm , quiet man of DATE who has never been given a disciplinary punishment during his detention . ... He carries out his duties adequately and to the satisfaction of prison staff . In principle he works alone , but is occasionally willing to train other inmates in upholstery work . ... He is always polite and respectful towards prison staff ; none of them have complaints about him . He rarely has any contact with the social worker and if he does , he always asks the same questions . It is as if he forgets matters which have already been discussed . ”

The second report was drawn up on DATE by psychiatrist PERSON , who concluded as follows :

“ The personality test showed that the subject has an antisocial personality disorder with mild psychopathic features . There are also signs of narcissistic features . The character structure is rigid , but is not strongly displayed , perhaps because of his age . The risk that he will reoffend or get into trouble in some other way upon return to society is considered to be present ( moderate risk in comparison with the forensic population ) . ... In general the subject can be described as having an antisocial personality whose more unpleasant manifestations have been mitigated . ... It is reasonably certain that his personality will not change . Personality is formed up to DATE , after which only small changes take place . The examination shows that the subject ’s personality profile is fairly rigid . He will therefore always be a fairly unpleasant person in his relations with others and will always have difficulty in establishing and maintaining social contacts . Given his personality , I estimate the chances of successful integration in society to be small . ”

The third report requested by ORG was compiled by psychiatrist PERSON on DATE , in which the following was concluded :

“ The subject is , however , suffering from a severe antisocial personality disorder , characterised by a highly undifferentiated , fairly primitive emotional awareness , an underdeveloped conscience , rudimentary social skills , a lack of empathy . ... Although the subject displayed problematic and aggressive behaviour during DATE of his detention , even including an attempt at poisoning , he has practically been a model prisoner over DATE . ... This change in behaviour is largely attributable to the structure provided by the prison setting and the fact that he is much older now ( CARDINAL ) and is likely to become more and more moderate as the years go by . ... [ ORG to the risk of recidivism : I am in CARDINAL minds . Whereas the subject is almost a model prisoner , his character traits have not in essence changed . He continues to be a person with a serious disability . It remains in doubt how he will react and to what extent he can survive once the structure offered by the prison is no longer in place . ”

Following up the decision of CARDINAL DATE given by ORG , ORG in GPE concluded that more structured contact with a psychiatrist would be desirable . For this reason , the Procurator General of ORG asked his counterpart in GPE to ensure that the applicant received regular visits from a psychiatrist who would counsel him on the basis of a treatment plan , in so far as this could be done within the constraints of the enforcement of his life sentence .

A document entitled “ ORG ” was drawn up by the GPE prison ’s psychologist J.S.M. ( who had reported on the applicant for the purposes of the periodic review ; see paragraph CARDINAL above ) on DATE , apparently at the request of the applicant ’s representative . The psychologist stated that she had conducted a psychological test and an interview with the applicant , at a time ( DATE ) when she had only been working at the prison for DATE . She had no knowledge of what had been offered to the applicant prior to that . The short time during which she had had experience of the applicant was insufficient for her to produce a support plan or to execute such a plan .

A second document entitled “ Psychological Report ” was drawn up by the same psychologist on DATE , at the request of the Government . Apart from CARDINAL sentence , this report is identical to the report of DATE . The sentence in question states that , after consulting the applicant ’s medical file , the psychologist declared that no psychological or psychiatric treatment of the applicant had taken place .

In an email of DATE to the applicant ’s representative , the senior social worker in the GPE prison stated that there was nothing in the prison ’s medical file on the applicant , who had been transferred to GPE in DATE , to suggest that he had undergone any treatment by a psychiatrist or a psychologist . The ORG had employed a psychologist in DATE but she had not treated or supported the applicant . The applicant had visited the social work department of the prison with some regularity in order to talk or to organise practical matters .


CASE OF PERİHAN AND MEZOPOTAMYA BASIN YAYIN A.Ş. v. TURKEY

Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen

The first applicant was born in DATE and lives in GPE . The second applicant is a joint - stock company incorporated in GPE in DATE and dissolved in DATE ( see below ) . The first applicant was appointed as Director General of ORG on DATE .

On DATE ORG inaugurated a branch office in GPE . On DATE , police officers from ORG conducted a search of that office , confiscating certain newspapers , magazines , books , cassettes and documents , which were allegedly illegal .

On DATE the Deputy Governor of ORG requested ORG to institute proceedings against ORG with a view to its dissolution .

On DATE the public prosecutor instituted proceedings against Mr PERSON , the manager of the ORG branch office , and Ms ORG , the then Director General of ORG . They were accused of storing banned books at the branch office .

On DATE the ORG Magistrate ’s Court held that the criminal proceedings should be discontinued since the prosecution was time - barred under LAW .

On CARDINAL , DATE , DATE , DATE , DATE and DATE , the ORG office of ORG was searched by police officers . Various books and publications , including a calendar published by ORG , were confiscated .

On DATE the ORG office was closed on the order of the ORG Governor .

On DATE the ORG Governor requested ORG to institute proceedings against ORG with a view to its dissolution under the relevant provisions of LAW .

On an unspecified date criminal proceedings were instituted in ORG against members of ORG board of directors for publishing a calendar which was allegedly used to disseminate propaganda in favour of the illegal ORG ( “ the ORG ” ) .

On DATE ORG suspended the proceedings , pursuant to LAW . DATE on the suspension of pending cases and penalties in media - related offences .

On DATE the GPE office of ORG was searched by police officers . Certain publications , which were allegedly illegal , and a satellite decoder were seized .

On DATE the GPE Governor asked ORG to institute dissolution proceedings against ORG , alleging that the company had been disseminating propaganda in favour of the ORG .

On an unspecified date , criminal proceedings were instituted in FAC against ORG , the manager of the GPE branch .

On DATE the court acquitted PERSON of the charges against her .

Following complaints lodged by the ORG Governor and the ORG Governor respectively , on DATE ORG ( “ the plaintiff ” ) instituted proceedings against ORG in ORG , with a view to its dissolution on account of its activities against public order . On DATE ORG registered the case against ORG . It decided , inter alia , to notify the parties of the date of the hearing fixed for CARDINAL DATE , in accordance with ORG CARDINAL and CARDINAL of the Code of Civil Procedure , which provided a warning that if CARDINAL of the parties failed to appear before it or to submit observations , the court would not be precluded from determining the merits of the case . It further decided to notify ORG of the plaintiff ’s written submissions and evidence .

On DATE the above documents were served on ORG , as recorded in ORG . They were picked up by a certain PERSON , who signed the notification record as an authorised representative ( şirket yetkilisi ) .

In the meantime , the plaintiff submitted a number of pieces of evidence to the case file in support of its claim , including official documents , such as incident and seizure reports relating to the abovementioned searches . They were admitted to the case file on DATE .

At a hearing on DATE the court noted the absence of ORG , but observed that the notification had been duly served . The evidence provided by the plaintiff was read out . The court decided to compile further information and documents regarding the accusations against ORG from the LOC , GPE and ORG public ORG offices .

NORP The court held regular hearings . At the hearing held on DATE the court decided to stay the proceedings pending the outcome of the cases before the criminal courts .

On DATE the court decided to dissolve ORG , pursuant to LAW . In its decision , it noted that , despite due notification , the company had failed to attend the hearings and had not submitted any observations . It took into account the incidents which had taken place at the LOC and ORG branch offices , and held that the company was responsible for them . It considered that the activities of those branches had breached public order and that therefore the company had to be dissolved . A liquidator was assigned . The decision of the court was served on ORG , as recorded in ORG .

On DATE ORG appealed against the decision of the first - instance court . In its procedural grounds of appeal , it contended , inter alia , that the court had failed to duly notify it of the case because the notification had been served on a certain PERSON , who was not a member of the board of directors at that time . In addition , ORG argued that it had not been notified of the evidence admitted in the course of the proceedings . In its substantive grounds of appeal , it claimed that the court had decided on the basis of CARDINAL incidents in connection with which the company had not been convicted .

At a hearing on DATE ORG , having heard the parties , decided to adjourn the deliberations .

On DATE ORG , having examined the case file , the parties’ submissions to it and the documents contained therein , dismissed ORG objections .

On DATE ORG requested ORG to rectify its judgment . It repeated its earlier submissions regarding what it described as “ substantial grounds for appeal ” .

On DATE ORG dismissed the abovementioned rectification request .


Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

A list of the applicants is set out in the appendix .

Mr PERSON was convicted of robbery and drugs offences . He was sentenced on DATE to a combination of determinate and indeterminate sentences , with the lead sentence ( for the robbery ) being CARDINAL of imprisonment for the public protection ( “ IPP ” ) with a minimum term ( “ tariff ” ) of DATE .

NORP In DATE he was assessed as unsuitable for the Controlling Anger and Learning to Manage it ( “ CALM ” ) course and anger management was made a sentence - planning target .

NORP In DATE he was transferred to ORG and in DATE he commenced the DATE Enhanced Thinking Skills ( “ ETS ” ) course . He completed the course in DATE . He was assessed as having made some progress on the course , but there was doubt about his ability to carry the lessons into practice and about his honesty , self - control in prison and drug use .

Meanwhile , in DATE he was reduced from a Category B prisoner to the lower - risk Category C. He also completed a drug awareness course in DATE and a victim awareness course in DATE .

Following his reclassification as a category C prisoner , Mr PERSON was disciplined on CARDINAL occasions for offences including disobedience , assault , drug offences and the possession of mobile telephone parts . In DATE , he was reclassified as a category B prisoner .

On DATE ORG reviewed his case . It noted that although he had begun to address his offending behaviour he still had much work to do . The decision also noted that he had previously been referred for the CALM course but that the assessment indicated that it was not suitable for him because his offending was not emotionally driven . However , some anger management work was nonetheless required .

NORP In DATE Mr ORG ’s tariff expired .

In DATE , he commenced DATE anger management consultations with his offender manager .

NORP In DATE , as a result of his previous misbehaviour in custody , he was transferred to a high security prison at ORG , where the priority was security and rehabilitative courses were comparatively few . During his time at ORG , he continued the CARDINAL - to - CARDINAL anger management consultations until DATE . His behaviour underwent a significant improvement .

Meanwhile , regular sentence - planning meetings took place . In DATE the meeting concluded that he should be referred once again for the CALM course , notwithstanding the previous negative assessment , and that he should be assessed for FOCUS , a high - intensity drug abuse programme . By DATE a decision had been taken not to refer him for CALM and he had yet to be assessed for FOCUS . A referral was sent to the substance abuse team on DATE .

On DATE ORG again reviewed Mr ORG ’s case . The decision noted that Mr PERSON was motivated to undertake offence - focused work but had had little opportunity to do so at ORG . It considered it essential that necessary work on drug abuse and anger management be progressed as soon as possible .

On DATE Mr PERSON was assessed as unsuitable for FOCUS and the Prisoners Addressing Substance Related Offending ( “ PASRO ” ) course was recommended instead .

On DATE the prison authorities confirmed that a prison transfer would be required to enable him to undertake PERSON and anger management work .

A prison transfer was subsequently planned but was cancelled when Mr PERSON was accused of a further disciplinary offence in DATE . The disciplinary proceedings lasted until DATE , when the allegation was not proceeded with because the officer who made it became ill and could not continue .

Meanwhile , at a DATE sentence - planning meeting it was decided that Mr ORG should be transferred to another prison to enable him to complete necessary coursework . DATE and DATE prison staff actively sought an appropriate prison transfer for Mr PERSON . However , this was further complicated by the opening of his parole window in DATE , at which point , because of the need to allow the preparation of reports for the pending ORG review , transfers were usually not permitted .

On DATE Mr PERSON lodged a judicial review claim seeking , inter alia , a declaration that his LAW rights had been violated as a result of the delay from DATE in providing access to rehabilitative courses , and damages .

In DATE Mr PERSON ’s offender manager added ORG ( “ ORG ” ) as a sentence - planning target . In DATE Mr ORG underwent assessment for the programme and he began the ORG in DATE . His ORG review was deferred , with his agreement , to enable him to complete the ORG . The next review was fixed for DATE .

NORP In its decision dated DATE , ORG noted that good progress was being made but declined to recommend a transfer to open conditions .

By DATE , Mr PERSON had been transferred to ORG and was undertaking a course which had replaced PERSON , namely FAC ( “ BSR ” ) .

His judicial review claim was unsuccessful before ORG and ORG . He was given permission to appeal to ORG ( see paragraphs CARDINAL below ) .

In DATE Mr PERSON was convicted of various sex offences . He had previous convictions for sexual offences . On DATE he received an ORG sentence with a tariff of DATE .

NORP In DATE he completed the ORG programme .

In DATE he completed the DATE Core Sex Offenders Treatment Programme ( “ SOTP ” ) .

A Structured Assessment of Risk and Need ( “ SARN ” ) report dated DATE concluded with the recommendation that there should be a full psychopathy assessment and that , so long as that did not provide contra - indications , he was suitable for ORG ( “ ORG ” ) . By DATE , this was a formal sentence objective .

On DATE Mr PERSON was moved to PERSON , which specialises in sexual offenders , to access the ORG . On DATE he was entered on the waiting list .

Following a Parole Board Review , on DATE the ORG declined to recommend that he be moved to open conditions .

In DATE the psychopathy test was conducted .

A DATE ( Offender Assessment System ) report noted that the sentence objectives for the following DATE included completion of the ORG .

NORP In DATE Mr PERSON was informed that he would not be offered a place on the ORG until DATE at the earliest .

Mr PERSON was assessed as suitable for the ORG in DATE . In her report , the Deputy Treatment Manager indicated that he might yet need also a ORG course .

On DATE Mr PERSON commenced judicial review proceedings , arguing , inter alia , that his LAW rights had been violated as a result of the delay in providing access to rehabilitative courses .

On DATE ORG declined to direct Mr PERSON ’s release .

On DATE Mr PERSON ’s tariff expired .

In DATE he was transferred to PERSON to commence the ORG . He completed the course in DATE .

His judicial review claim was unsuccessful before ORG and he was given permission to appeal directly to ORG ( see paragraphs CARDINAL below ) .

Mr PERSON was convicted in DATE of a total of CARDINAL sexual assaults on CARDINAL unrelated young men , committed over a period of DATE . All the victims were either young or vulnerable . He had CARDINAL previous sex - related convictions . He received an ORG sentence with a tariff of DATE .

On an unknown date , Mr PERSON participated in an alcohol awareness course .

NORP In DATE , he completed the ORG programme .

In DATE he completed the Core SOTP .

In DATE , a SARN report recommended that he be assessed for the ORG and suggested the likely desirability of a subsequent ORG ( “ BLB ” ) programme .

In DATE his tariff expired . At a ORG review the ORG declined to order his release . By letter dated DATE , the Secretary of ORG agreed with the decision of ORG and identified assessment for and , if suitable , completion of the ORG and the ORG as appropriate further interventions . He set the review period at DATE , including DATE to complete the ORG , taking into account the time for assessment and the waiting list .

In DATE Mr PERSON was assessed for the ORG . In a report dated DATE he was found to be suitable for the programme .

Meanwhile , in DATE he completed ORG ( “ ORG ” ) programme .

At his ORG hearing in DATE , ORG noted that he had completed the ORG course and that he was awaiting a place on the ORG , which was expected to address much of his outstanding treatment needs . It refused to order release .

On DATE Mr PERSON commenced judicial review proceedings arguing , inter alia , that his LAW rights had been violated as a result of the delay in providing access to rehabilitative courses .

He commenced the ORG in DATE and completed it in DATE .

The CARDINAL appeals were heard together by ORG , which gave judgment on DATE . The court explained that it would consider whether and , if so , how far to modify its case - law in light of this ORG ’s judgment in PERSON , PERSON and PERSON v. the GPE , ORG . ORG and CARDINAL , DATE , concerning access to rehabilitative courses .

Lord PERSON and Lord PERSON delivered jointly the opinion of the court on the general issues of principle and in respect of Mr PERSON and PERSON ORG . Separate opinions were given in respect of the appeal by PERSON PERSON .

ORG observed that this Court ’s reasoning in PERSON , PERSON and PERSON opened the possibility that post - tariff detention could fluctuate between the lawful and unlawful , depending on whether a prisoner serving an ORG sentence was being offered an appropriate opportunity to progress in his sentence . The court pointed out that , according to the wording of LAW and DATE , any detention not authorised by LAW ought to lead release . Thus in a case where detention was found to be arbitrary under LAW , in application of the PERSON , PERSON and PERSON approach , the prisoner should – according to ORG – be entitled to an immediate order for release . There was , ORG said , a real difficulty about accepting the proposition that the LAW required the release of an ORG prisoner before ORG was satisfied that his detention was no longer required for the protection of the public .

As to this ORG ’s conclusion in PERSON , PERSON and PERSON that detention following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system was unlawful , the court explained :

“ CARDINAL . ... That exposes a problem . Particularly where a tariff is of a relatively long period , a prisoner ’s progression towards release through courses and experience in open conditions should , where and to the extent feasible , be facilitated not merely after but also in advance of the tariff period , so as to keep open the possibility of release on or shortly after its expiry ... Yet , on the ECtHR ’s approach , treating the present issue as falling within the text of article CARDINAL(CARDINAL)(a ) , no complaint can apparently arise until the expiry of the tariff period , and any complaint can then only arise if the failure to provide courses , etc continues after the expiry of the tariff period .

The second , much more substantial problem ... is that logically it would , if followed in GPE , mean , as we have stated , that any prisoner not being progressed through the system should be released , and that ORG DATE section CARDINAL(CARDINAL)(b ) should be declared incompatible with the Convention rights insofar as it precludes this ... Many of the failings revealed by the cases which have come before the courts to date are simply incapable of being redressed at the drop of a hat or wig . Systems failed , due to lack of resources and facilities , and it takes time to mend such failures , whatever order a court might make . Moreover , in a case where the failure was repaired , as it might be by the time a court came to consider the case , by the provision of adequate opportunity to the prisoner , then the court would be left , on this view of the ECtHR decision , with detention which had been unlawful for a time but was no longer . ”

ORG concluded that it was not possible to follow the reasoning of the ORG in GPE , PERSON and PERSON . However , this did not mean that ORG prior decision in that case should be followed . ORG had underlined the link which should be recognised between preventive detention and rehabilitation , and had also concluded that there should be an individual remedy in damages for failure to provide prisoners serving indeterminate sentences with proper means of progression towards release . ORG explained :

“ CARDINAL . We consider that ORG should now accept the Fourth Section ’s conclusion , that the purpose of the sentence includes rehabilitation , in relation to prisoners subject to life and ORG sentences in respect of whom shorter tariff periods have been set . We also consider that ORG can and should accept as implicit in the scheme of article CARDINAL that the state is under a duty to provide an opportunity reasonable in all the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public . But we do not consider that this duty can be found in the express language of article CARDINAL(CARDINAL ) . Treating it as an aspect of the duty to avoid ‘ ORG under article CARDINAL(CARDINAL)(a ) has unacceptable and implausible consequences which we have already identified . The ORG decision in PERSON also remains important authority that arbitrariness has a confined meaning , when used as a test of lawfulness in the context of article CARDINAL(CARDINAL)(a ) .

Article CARDINAL ) would be a more satisfactory home for any duty of the nature identified in the previous paragraph , if its language covered it ( which it does not ) . Article CARDINAL ) gives rise to an ancillary duty on the state , breach of which does not directly impact on the lawfulness of detention . The duty is to make available access to judicial review by a court or here ORG , which will consider whether the information put before it justifies continued detention or release . PERSON access to ORG like reasonable access to proper courses and facilities represents an important aspect of a prisoner ’s progression towards release . But the language of article CARDINAL(CARDINAL ) is in terms confined to access to judicial review by ORG on the basis of the information available from time to time . It does not cover the prior stage of provision of courses and facilities in prison , which gives rise to the information necessary on any ORG review .

The duty to facilitate the progress of such prisoners towards release by appropriate courses and facilities can not therefore be brought , in our opinion , within the express language of either article CARDINAL(CARDINAL)(a ) or article CARDINAL(CARDINAL ) . But it is on any view closely analogous , at an earlier stage , to the duty involved under LAW , and it is far more satisfactory to treat it as an analogous duty arising by implication at an earlier stage than that covered by LAW , rather than to treat LAW ) as incorporating it . We consider that a duty to facilitate release can and should therefore be implied as an ancillary duty - a duty not affecting the lawfulness of the detention , but sounding in damages if breached . Such a duty can readily be implied as part of the overall scheme of LAW , read as a whole ... ”

The appropriate remedy for a breach of such a duty was not release of the prisoner but an award of damages for legitimate frustration and anxiety . Damages would be recoverable in respect of any period of extended detention which could be shown to have resulted after the expiry of the tariff period , whether the failure occurred before or after the expiry of the tariff period . A prisoner could also seek mandatory orders .

ORG noted that the prison service manager who reviewed Mr PERSON ’s case accepted that there had been “ regrettable delays ” at some points . However , to say that more extensive coursework could have been made available to him was a very long way from saying that he had not been provided with a reasonable opportunity to rehabilitate himself and demonstrate that he no longer presented an unacceptable risk of serious harm to the public . According to the court , LAW did not create an obligation to maximise the coursework or other provision made to the prisoner , nor did it entitle the court to substitute , with hindsight , its own view of the quality of the management of a single prisoner and to characterise as arbitrary detention any case which it concluded might have been better managed . It continued :

“ CARDINAL . ... It requires that an opportunity must be afforded to the prisoner which is reasonable in all the circumstances , taking into account , among all those circumstances , his history and prognosis , the risks he presents , the competing needs of other prisoners , the resources available and the use which has been made of such rehabilitative opportunity as there has been . It is plain that ORG was not denied a fair or reasonable opportunity to rehabilitate himself or to demonstrate that his risk is acceptable . In DATE of his minimum term he was provided with courses in enhanced thinking , drug awareness and victim awareness . Sadly , his response was poor , there was doubt about his honesty , and his behaviour in prison attracted the many disciplinary adjudications mentioned above , all of which demonstrated that the risk he presented was far from removed . The transfer to ORG somewhat reduced the availability of rehabilitative courses , but there will inevitably be differences between prisons which can give emphasis to rehabilitation and those where the priority is security . It was his own misbehaviour which led to his transfer there , over DATE after the expiry of his minimum term . The consequence was that PERSON , which was the course judged , plainly bona fide , as that most suitable for him , was not available . Even without PERSON , there was sustained CARDINAL to CARDINAL anger management work for DATE after transfer to ORG . Even if , with the benefit of hindsight , consideration of CALM and FOCUS courses involved some misjudgement , it was perfectly understandable . He very plainly had anger problems , whether or not his index offences were the result of loss of temper , and he very plainly had a drug - use and drug - supply background . The advice to take an ORG course was plainly a sensible expedient , given that transfer to a place where the first choice PERSON was available had proved unavailable despite considerable efforts . Once it was identified , ORG was begun within DATE . The attempts to find a transfer were clearly persisted in ; they were complicated by ORG ’s wish to be in a prison near to his family , by the pending adjudication in DATE and by a ‘ parole window’ in DATE , quite apart from the competing needs of other prisoners in a large prison population . His case does not begin to approach the kind of failure of provision considered and chronicled in R ( PERSON ) . He was afforded reasonable opportunity to rehabilitate himself and to demonstrate that he was no longer a risk to the public , but did not do either . There was no breach in his case of the ancillary obligation under LAW . ”

ORG referred to ORG finding that there had been a breach of the Secretary of ORG ’s public - law duty because of an under - provision of the ORG . This did not , however , mean that the Secretary of ORG was under an obligation to provide the ORG to every prisoner for whom it might be suggested . The question was whether the Secretary of ORG had afforded Mr PERSON a reasonable opportunity to reform himself and to demonstrate to ORG , by the time of tariff expiry or within a reasonable time thereafter , that he no longer presented an unacceptable risk to the public . As there were differences of opinion on this question among the members of ORG , CARDINAL opinions were issued .

Lord PERSON , delivering the opinion for the majority , emphasised that the breach of the ancillary obligation under LAW which this GPE court identified in PERSON , PERSON and PERSON involved a wholesale failure to address rehabilitation . He continued :

“ DATE . ... It was of a quite different order from the complaint made by PERSON . Whereas the prisoners PERSON , PERSON and PERSON in PERSON were left for a long time to languish in local prisons with no sentence planning and no rehabilitative work at all , no little effort was made with PERSON , who was provided with successive courses and had ample opportunity to change himself and to demonstrate that he was no longer a predatory sexual offender . The ORG and ORG courses with which he was provided supplied ample reasonable opportunity to do so . The latter in particular lasted DATE or more and involved CARDINAL sessions per week . Unfortunately , what was demonstrated was that PERSON remained a serious risk , since the initial scores for child abuse supportive beliefs proved false positives , and he remained manipulative , mistrustful and denying his principal offences , seeing himself as the real victim . ”

Lord PERSON considered the strongest part of Mr PERSON ’s claim to be the passage of time after the psychologist ’s report of DATE , before the ORG was begun in DATE . However , in his view , since DATE was not due to expire until DATE , there could have been very little complaint before at least the Secretary of ORG recognised the course as an objective in DATE , and perhaps not until well after that . He further noted that in DATE , still well before the expiry of the minimum period , there had been further detailed psychopathy assessment sessions . Although these were principally assessments rather than therapy , they provided ample opportunity to demonstrate change , or at least encouraging understanding of the true nature of what he had done . Instead , what those sessions revealed was that PERSON still saw himself as the victim , denied his principal offences , believed that he had not harmed any of the children and remained manipulative . Lord PERSON continued :

“ CARDINAL . ... There could be no clearer demonstration of the risk he continued to present . There has certainly been considerably greater delay in putting him onto the even more intensive ORG than one would choose to see in an ideal prison management system , but that is not the same as saying that he has not had a fair opportunity to reform himself or to demonstrate that he is no longer a danger . Despite the delay he was able to begin the ORG quite shortly after the expiry of his tariff .

There is a great danger , in considering PERSON ’s case , of classifying the ORG as the acid test by which alone he could demonstrate his safety for release . Even if it were , it would not mean that he had not had reasonable opportunity to demonstrate this already . But it was not . The fact that the psychological recommendation that PERSON should take part in this programme did not have spoken conditions attached to it , does not mean that it was the only way in which he could demonstrate his safety . It was in fact neither a necessary nor a sufficient means of doing so . It was not sufficient since it is not designed to address the offenders’ sexual interest in pre - pubescent girls ; even if made available , it would have been only part of the possible programmes which PERSON might have needed in the absence of his accepting that his behaviour , which he continued to characterise as innocent victimhood , was in fact a considerable danger to children , and in the absence of his recognition that it needed to alter . It was not necessary , because by this time he had had ample confrontation with his failings , and if he had recognised them and shown real willingness to change , for example in the course of TIME of interviews for the ORG - R assessment , then there may well have been no occasion for DATE of ORG work . ”

Lord PERSON emphasised that the responsibility for deciding what form of rehabilitative assistance was to be afforded to a prisoner had to rest with the individual ORG , providing that the minimum standard was met of a reasonable opportunity to him to demonstrate safety . The availability of limited resources , particularly at a time of national financial stringency , was an unavoidable factor . He continued :

“ CARDINAL . ... ORG ( “ CSOTP ” ) administered in the prisons of GPE and GPE is of considerable intensity and makes extensive psychological demands on those offenders who take part in it . It is very likely that if it stood by itself it would meet the duty contemplated by PERSON and even more likely that it would do so if coupled , as it is , with the EST , ORG , ORG and other programmes , which are available . There is no legal obligation to provide an ORG course in the first place . It is simply CARDINAL possible way of tackling recalcitrant attitudes in some prisoners and a welcome arrow in the quiver for the case of those who prove very difficult to change . To hold that a delay ( including an unacceptable delay ) in providing it constitutes a breach of article CARDINAL , via the ancillary duty recognised , would be likely to have the perverse effect of discouraging the prison service from providing it at all , and/or of discouraging recommendations for courses unless and until they are known to be shortly available , and/or of discouraging the prison service from devising and suggesting new forms of programme , especially if they are extremely expensive , as clearly the ORG is . All these effects would be an impediment to individualised prisoner assessment and management , and to eventual rehabilitation of those for whom it is possible . ”

Lord PERSON dissented , explaining that in his view a legislative scheme for IPP prisoners had to allow a reasonable opportunity to demonstrate safety and had to be accompanied by reasonable systems and resources to enable offenders to change and develop so as to be able to demonstrate that they were safe and to achieve release by tariff expiry or reasonably soon thereafter . As an element of this duty , he considered that there should be a reasonable degree of access for IPP prisoners to the ORG which many prisoners would need before they could hope to show that they were safe . That was the consequence of the scheme itself , under which it was otherwise inevitable that prisoners would languish in prison long after the tariffs set by reference to the seriousness of their actual offending . In his view , this was a consequence of the rehabilitative purpose of the ORG sentence . A finding that there was no breach of the ancillary duty in the present case could not , ORG said , stand with the finding of ORG that the Secretary of ORG was in breach of his public law duty to make reasonable provision of systems and resources for the purpose of allowing PERSON PERSON a reasonable opportunity to demonstrate to ORG , by the time of tariff expiry on DATE or reasonably soon thereafter , that he was safe to be released . He would therefore have upheld Mr PERSON ’s appeal and awarded modest damages .

ORG upheld Mr PERSON ’s appeal . It said :

“ DATE . ... It is apparent that the CARDINAL and a half years of his tariff ( somewhat shortened , properly , by time spent on remand awaiting trial and sentence ) was as well furnished with offender - behaviour work as one could reasonably expect . He first completed the ORG course , which is a frequent if not conventional first step , and he was placed on the ORG within his comparatively short tariff period . He completed the ORG in DATE , and since it is a DATE course it would appear that he must have been placed on it almost immediately after completing the ORG in DATE . The ORG report which first mooted the ORG was in DATE , so that there could never have been any prospect of his being both assessed for , and completing , the ORG by the time of his tariff expiry in DATE . The chronology illustrates the fact that if standard , intensive , course work such as the ORG does not succeed and if lack of risk is not demonstrated at the end of it , it will be inevitable that a prisoner with this kind of tariff period will pass the end of the tariff without being able to be offered every course which the system has .

However , it is important to note that , no doubt mindful of the comparative brevity of his tariff , the Secretary of ORG by the formal letter of DATE effectively defined what was regarded as a reasonable opportunity for PERSON to build on the partial progress which he had made and to demonstrate ( if he could ) that he was safe to release , namely over a DATE period . Neither this timetable nor anything approximating to it was honoured . Instead , it was not until after that period had come and gone that he was able to begin the ORG , and the letter shows that even if this produced a successful outcome , DATE or thereabouts was contemplated . We conclude that in ORG ’s case there was a failure to provide him with the opportunity to try to demonstrate that he was safe for release which the Secretary of ORG regarded as reasonable . The assessment for ORG was in DATE . If there had been a plentiful supply of places he might have been on it by about Autumn of that year , but no real complaint could have been made merely because this kind of course was not immediately available ; if it had been provided in or about Spring DATE , there would we conclude have been no breach . There is thus an unacceptable delay of DATE , and all post tariff . The inference of legitimate frustration is justified and that period calls for an award of damages . Given that it was post tariff we assess it at £ MONEY . ”

The relevant domestic law and practice is set out in the ORG ’s judgment in PERSON , PERSON and PERSON , cited above .