CASE OF JAMES AND OTHERS v. THE UNITED KINGDOM

No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 6-1;No violation of Art. 13

The applicants are or were trustees acting under LAW GPE . The first applicant , PERSON , is a chartered surveyor resident in GPE . The second applicant , PERSON the Sixth Duke of GPE , resides at GPE . The third applicant , PERSON , is a chartered accountant resident in GPE . The fourth applicant , Sir PERSON , is a banker in GPE . The fourth applicant was appointed as trustee on DATE in place of the third applicant , who retired .

In the area of GPE in LOC , upon a site which was once farmland on the outskirts of GPE , the GPE family and its trustees have developed a large ORG comprising CARDINAL houses which has become one of the most desirable residential areas in the capital . The applicants , as trustees , have been deprived of their ownership of a number of properties in this Estate through the exercise by the occupants of rights of acquisition conferred by LAW DATE , as amended .

This legislation confers on tenants residing in houses held on " long leases " ( over , or renewed for periods totalling over , DATE ) at " low rents " the right to purchase compulsorily the " freehold " of the property ( the ground landlord ’s interest ) on prescribed terms and subject to certain prescribed conditions ( see paragraphs CARDINAL to CARDINAL below ) . Under the system of long leaseholds , a tenant will typically purchase a long lease of property for a capital sum and pay a small or even nominal rent for it thereafter . The lease is a real - property interest , registerable in ORG . The legislation in issue in the present case is not concerned with the ordinary system of rented tenure under which the tenant pays a " rack rent " reflecting the full DATE value of the property . The landlord / tenant relationship under the ordinary system is regulated , for houses under a certain ( rateable ) value , by separate legislation in the form of ORG , which provide machinery for fixing " fair rents " and provide certain security of tenure for tenants .

CARDINAL principal forms of long lease of residential property exist .

The first is a building lease , typically for DATE , under which the tenant pays a " ground rent " - a low rent fixed by reference to the value of the bare site - and undertakes to erect a house on the site and in general also to deliver it up in good repair at the end of the lease .

The second is a premium lease where the tenant pays the landlord a capital sum or " premium " for a house provided by the landlord , and thereafter a rent . The duration of the lease is variable , as are the relative proportions of premium and rent . According to evidence submitted to the ORG , the premium charged will typically take into account the building cost and an appropriate profit element . Factors entering into the calculation will normally include the length of the proposed lease , its terms ( for example , whether sub - letting is allowed ) and the state of the property at the time when the lease is granted . The method used to calculate the premiums under the leases concerned in the present case is described below ( paragraph CARDINAL ) .

The distinction between the CARDINAL types of lease is not clear - cut . For example , a " premium lease " may contain an obligation to carry out substantial repairs , alterations , additions or improvements to an existing property , and thus be analogous to a building lease . In any event , it is the almost invariable practice for the lease to contain a clause making the tenant responsible for all running repairs to the house during the currency of the lease and requiring him to yield up the property at the end of the lease in good repair .

The tenant holding a property under a long lease may normally sell the lease to a third party , who then acquires the tenant ’s rights and obligations under the lease for the remainder of its duration . In practice , leases are commonly bought and sold on the property market without the landlord playing any part in the transaction . A tenant may normally also grant an " under - lease " of the property . As a matter of law , however , whether there is a right to sell the lease or sublet depends on the terms of the particular lease .

The capital value of the landlord ’s interest in a property let on a long lease arises from CARDINAL sources : firstly , the rent payable under the lease and , secondly , the prospect of reversion of the property to him at the end of the lease . At the beginning of a very long lease the value of the reversion may be very little and the total market value of the landlord ’s interest may therefore amount to little more than the capitalised value of the rent . The capital value of the tenant ’s interest arises from his right to occupy the house under the lease , and the time for which that right will subsist is of critical importance in relation to its value . At the beginning of a very long lease , the value of the tenant ’s interest may be more or less equivalent to a " freehold " interest if the rent payable is a nominal one .

The lease , however , is a wasting asset . As a lease progresses , the value of the tenant ’s interest in the property diminishes , whilst the value of the landlord ’s interest increases . At the end of the lease , the tenant ’s interest ceases to exist and the buildings , including improvements and repairs made , revert to the landlord without any compensation to the tenant .

The sum of the values of the landlord ’s and tenant ’s respective interests is less than the freehold value of the property with vacant possession , since neither the landlord alone nor the tenant alone can offer a third party the freehold with such possession . If , however , the reversion is sold to the occupying tenant , who can then merge both interests into a simple freehold , its value is greater than the investment value to a third party purchasing the reversion subject to the existing lease . In free market transactions , it is usual for the vendor and the purchaser to share this additional value , known as the " merger value " , in agreed proportions .

The long - leasehold system of tenure has been widely used in GPE and GPE , and in particular was associated with much urban development in DATE following the industrial revolution .

From DATE , demands began to be made for " leasehold enfranchisement " , that is the right for tenants to purchase compulsorily the freehold of their holdings . CARDINAL , a number of unsuccessful ORG to grant some measure of leasehold enfranchisement were introduced into ORG .

Demand for reform of the law revived soon after the Second World War and in DATE a ORG ( ORG ) was appointed by the Lord Chancellor to consider various aspects of the leasehold question .

In their report , presented to ORG in DATE ( ORG Paper Cmd CARDINAL ) , the majority of the ORG came out against giving tenants a right of enfranchisement . They concluded that there were both general objections of principle and practical obstacles to such a course of action . They further believed that " leasehold enfranchisement ... would not be in the public interest " ( paragraph CARDINAL ) . They did , however , recommend that occupying tenants of houses under a certain rateable value should have security of tenure under LAW .

The minority report of the ORG drew attention to the strong and bitter sense of injustice felt by long leaseholders in the case of building leases and recommended that certain occupying tenants should have a right of leasehold enfranchisement by compulsory purchase .

ORG did not have time to put forward any permanent legislation following the ORG report . ORG elected in DATE accepted the majority view of ORG , and its recommendations were enacted in the Landlord and Tenant Act DATE ( " the CARDINAL Act " ) . In broad terms , the effect of this LAW was - and still is - that on the expiry of a long residential lease the tenant should have the right to continue occupying the house as a sitting tenant under ORG , paying a " fair rent " as defined in those Acts and enjoying the security of tenure afforded by the ordinary rent legislation . This privilege is transferable on death to other members of the tenant ’s family residing in the property .

Public discussion of the matter continued . In DATE , claims were made in ORG that leaseholders were being subjected to hardship as a result of the onerous terms which landlords were asking for the sale of reversions or for the extension or renewal of existing leases . Enquiries were made by the Government who invited the bodies representing professions most experienced in the field ( solicitors , surveyors , auctioneers , estate and property agents ) to report on the practice of ground landlords in this respect . In DATE , a ORG was published presenting a summary of their assessments ( ORG Paper Cmnd DATE ) . In general , the professional bodies appeared to find that the existing system worked adequately , although there was widespread dissatisfaction among tenants as to the limited nature of the interest they held .

For DATE compulsory enfranchisement had been part of ORG policy . After the election of a ORG in DATE , a further ORG was published in DATE setting out the ORG ’s proposals for reform including a scheme of compulsory enfranchisement ( ORG in GPE and GPE - Command Paper Cmnd CARDINAL ) . The grounds on which the Government considered reform to be necessary were set out as follows :

" The purpose

This White Paper is concerned with residential long leases particularly those granted originally in DATE . In the case of long leases , experience has shown that the system has worked very unfairly against the occupying leaseholder . The freeholder has provided the land ; but in the great majority of cases it is the leaseholder or his predecessor in title who at their own expense have built the house on the land . Whether this is so or not in all cases , it is almost universally true that over DATE it is the lessee and his predecessors who have borne the cost of improvements and maintenance , and these will probably have cost far more than the original building itself . At their expense the leaseholders have preserved it as a habitable dwelling and have used it as such , and not unnaturally , an occupying leaseholder who at the end of the term has lived in it for such a period of years regards it as his family home . It is in such cases quite indefensible , if justice is to be done as between freeholder and occupying leaseholder , that at the end of the term , the law should allow the ownership of the house to revert to the freeholder without his paying anything for it so that he gets not only the land but also the house , the improvements and everything the leaseholder and his predecessors have added to it .

The ORG has decided that a solution must be found to right this injustice . In the ORG ’s view the basic principle of a reform which will do justice between the parties should be that the freeholder owns the land and the occupying leaseholder is morally entitled to the ownership of the building which has been put on and maintained on that land .

CARDINAL circumstances make reform a matter of urgency . First , most people buy their house on mortgage and for them the leasehold system works particularly harshly . A purchaser on mortgage may pay virtually the freehold price for a lease with DATE to run but as he reaches the end of his mortgage term he will feel a sharpening sense of injustice . He will realise that after he has discharged the mortgage he will have an interest far less valuable than it was when he bought it , and difficult to sell because a subsequent purchaser may not be able to get a mortgage . This is the reality now confronting many owner occupiers who purchased their houses on setting up home immediately after the war . Second , a great many leasehold estates were built in DATE when landowners used their monopoly power to prevent development taking place on other than leasehold terms . This occurred particularly in GPE and in some NORP areas . These leases are beginning to fall in and the leaseholders are now experiencing the full harshness of the leasehold system .

The Plan

The ORG will , therefore , introduce a PERSON to give leaseholders with an original long lease greater security and to enable them to acquire the freehold on fair terms . The PERSON will be based on the principle that the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder . It follows that the leaseholder will have the right to retain his house after the lease expires and the right to enfranchise his lease . "

The White Paper contained details of the Government ’s proposals to allow certain qualified leaseholders to acquire the freehold or obtain a DATE extension of their existing lease . The Government ’s proposals as to the terms of enfranchisement were explained as follows in DATE and CARDINAL of the White Paper :

" CARDINAL . Subject to provision for special cases , a qualified leaseholder will have the right at any time during the original term of the lease to acquire the freehold by buying out the landlord compulsorily . It is important to ensure that the price paid for enfranchisement is a fair price . But present market prices reflect the position under the present law which is inequitable to the leaseholder , and the price for enfranchisement must accordingly be based not on present market values but on the value of the land itself , including any development value attaching to it . The price of enfranchisement must be calculated in accordance with the principle that in equity the bricks and mortar belong to the qualified leaseholder and the land to the landlord .

It follows , and the PERSON will so provide , that where there is no development value ( and often there will not be ) the fair price for enfranchisement will be the value of the freehold interest of the site , subject to the lease and its extension of DATE . This will completely disregard the value of the building on reversion . "

Thereafter , following their re - election in DATE , ORG introduced a LAW into ORG to give effect to their proposals . During the ORG proceedings , ORG accepted the principle , enunciated in their DATE Election Manifesto , that there should be legislation " to allow ground leaseholders to buy or rent their houses on fair terms except where the property is to be developed " , but they opposed the terms in the LAW as being confiscatory . They argued that the case for basing the price of enfranchisement solely on the site value rested on a wholly false argument that the house belonged to the leaseholder . In fact , he had only purchased a right to live in it for a specified period . Market prices should be paid for what belonged to the landlords .

In the parliamentary debates on the PERSON , members of all political parties expressed the view that LAW , which provides security of tenure ( see paragraph CARDINAL above ) , had not succeeded in relieving the hardship or injustice caused to tenants at the expiry of long leases . CARDINAL of the reasons given were the continuing liability of the tenant to pay freshly assessed rents and the potential burden of heavy claims for dilapidations which some landlords used as a means of persuading tenants to give up their statutory right of possession .

CARDINAL criticism which was made of the provisions of the PERSON was that it did not distinguish between " deserving " and " undeserving " tenants and did not provide machinery for a court or tribunal to determine whether it was reasonable to make an enfranchisement order in favour of the tenant . The reason given for rejecting this criticism was the concern that , in view of the very large number of houses held on long leases , a system whereby the reasonableness of the enfranchisement would have to be established in each individual case would inevitably give rise to considerable uncertainty , to delay , to litigation in many cases and , no doubt in some tenants , to the feeling that it might be too expensive to venture on the uncertain exercise .

Another point raised in the debates arose from the fact that , under the PERSON , the right of enfranchisement would be restricted to the tenants of houses under a certain value . It was argued that if the leasehold system worked unjustly for the reasons suggested by the Government , then logically it must work unjustly in respect of all tenants , regardless of the value of the house . The reasons put forward by the Government spokesmen for confining the applicability of the legislation to houses below a certain value were essentially as follows :

( a ) it was appropriate for legislation improving the position of leaseholders to apply to the same class of property as the Rent Acts ;

( b ) the Government had tried to define the cases of greatest hardship which justified them in rectifying existing contracts ; the precedent had therefore been followed of the limits set by ORG ; whilst it might be argued on grounds of logic and consistency that no limit should be set , that would involve rectification to an unnecessary degree ;

( c ) to a degree the Government were influenced by the large capital gains which could be made by some tenants if the limits were removed entirely .

After extensive debate in both ORG , the PERSON introduced by the Government was duly enacted as LAW DATE . There were about one and a quarter million dwellinghouses occupied by long leaseholders in GPE and GPE in DATE . It was estimated at the time by the Government that all but CARDINAL or MONEY fell within the scope of the enfranchisement scheme introduced by the LAW . Subsequently , as a result of an amendment introduced in DATE , a band of more valuable houses within this remaining CARDINAL or MONEY was also made susceptible of enfranchisement ( see paragraph DATE ( b ) below ) .

The legislation governing leasehold enfranchisement now consists of LAW DATE ( " LAW " ) , as amended by LAW ( " LAW " ) , LAW ( " LAW " ) , LAW DATE , LAW ( " LAW " ) and ORG DATE . This legislation provides occupying tenants of " houses " let on long leases in GPE and GPE with the right to acquire the freehold of the house , or an extended lease , on certain terms and conditions . The term " house " , as defined , includes semi - detached and terrace houses but not flats and maisonettes ( section QUANTITY of LAW ) .

The following , in broad terms , are the principal conditions which must be satisfied before the tenant of a house becomes entitled to the right of acquisition conferred by the Act :

( a ) The tenancy must be a " long " tenancy , that is either for a term certain of DATE or more or for a lesser term once it has been renewed for periods totalling over DATE ( sections CARDINAL and CARDINAL of LAW ) .

( b ) With certain exceptions not relevant for present purposes , the " rateable value " of the house ( that is , the notional DATE rental value fixed for local taxation purposes ) must not exceed £ MONEY , or £ MONEY if the house is in LOC ( section CARDINAL of LAW as amended by CARDINAL of LAW ) . The original rateable - value limits fixed in LAW ( £ CARDINAL and , for GPE , CARDINAL ) were revised ( in effect being raised to £ MONEY and £ MONEY , respectively ) by LAW to take account of the country - wide rating revaluation carried out in DATE . LAW further extended the scope of the enfranchisement scheme under LAW by bringing in houses of a still higher rateable value ( MONEY CARDINAL and , for LOC , MONEY CARDINAL,CARDINAL ) , in respect of which , however , a different purchase price was payable ( see paragraph CARDINAL below ) . Certain even more valuable properties , being outside the global rateable - value limits , remain outside the ambit of the legislation altogether .

( c ) The DATE rent must be a " low " rent , that is CARDINAL of the rateable value ( sections CARDINAL and CARDINAL of LAW ) .

( d ) The tenant must occupy the house as his only or main residence and must have done so for DATE prior to the time when he gives notice of his desire to exercise his rights under the LAW ( section CARDINAL of LAW as amended by section CARDINAL and schedule CARDINAL of the DATE LAW originally provided for a DATE period ) .

Where the above conditions are satisfied the tenant has CARDINAL rights :

( a ) he can obtain a DATE extension of the lease at a rent representing the letting value of the ground ( without buildings ) , the rent being subject to revision after DATE ( sections CARDINAL and CARDINAL of LAW ) ;

( b ) he can purchase the freehold on the terms outlined below ( section CARDINAL of LAW ) .

The tenant can set in motion the procedure for exercising his right to purchase the freehold at any time up to the original term date of the lease , but not thereafter ( section CARDINAL of LAW ) .

No price or premium is payable for an extended lease other than the rent .

On the purchase of a freehold , a price is payable to the landlord as determined in accordance with CARDINAL or other of CARDINAL bases of valuation . These are referred to as the " DATE basis of valuation " , which was introduced by LAW ( as amended by LAW ) , and the " DATE basis of valuation " , which was introduced by LAW . The DATE basis applies to less valuable properties , and the DATE basis to the small percentage of more valuable properties ( see paragraphs CARDINAL in fine and CARDINAL ( b ) above ) brought within the scope of the legislation for the first time by LAW . The essential features of the CARDINAL bases of valuation may be summarised as follows :

( a ) The DATE basis of valuation applies to properties with a rateable value of MONEY CARDINAL , or £ MONEY if the house is in LOC . The price payable is the amount which the house , if sold on the open market by a willing seller , might be expected to realise on the assumptions , inter alia , that ( i ) the tenant has exercised his statutory right to obtain an extension of the lease for DATE , and ( ii ) the purchaser is someone other than the tenant ( section QUANTITY of LAW , section CARDINAL of the DATE Act and section CARDINAL of LAW ) . The effect of the assumption as to the extension of the lease is that the tenant pays approximately the site value , and pays nothing for the buildings on the site . The assumption that the purchaser is someone other than the tenant , introduced by LAW , also excludes any element of " merger value " from the price ( see paragraph CARDINAL above ) . This basis of valuation reflects the policy outlined in the DATE ORG ( see paragraph CARDINAL above ) .

( b ) The DATE basis of valuation applies to properties with rateable values of MONEY and MONEY CARDINAL , or MONEY and up to £ CARDINAL,CARDINAL if the house is in LOC . The price payable is the amount which the house , if sold on the open market by a willing seller , might be expected to realise on the assumption , inter alia , that at the end of the tenancy the tenant had the right to remain in possession of the house under LAW , that is as a statutory tenant paying a " fair rent " reflecting his occupation of the house ( see paragraph CARDINAL above - section CARDINAL of LAW as amended by CARDINAL of LAW ) . In principle , this basis of valuation is more favourable to the landlord and is intended to provide a price approximately equivalent to the market value of the site and house , assuming it to be tenanted under LAW ; it also allows the landlord a share of the " merger value " .

However , in a case where a tenant had obtained a DATE extension of the lease and subsequently , before expiry of the original term date of the tenancy , applied for the freehold , it was held by ORG ( see paragraph CARDINAL below ) that the assessment of the compensation had to be on the basis of the tenant having extended his lease ( PERSON v. Phillimore ORG ( DATE ) ORG , PERSON . CARDINAL , p. CARDINAL ) . In such circumstances , therefore , the landlord receives substantially less than the above market value in compensation . The Government recognised at the hearings before the ORG that this decision had identified a loophole in LAW that needed to be cured by amending legislation . The ORG has since been informed by the ORG that the decision of ORG has been set down for appeal .

Special provisions apply for extinguishing any intermediate lease where the occupying tenant claiming enfranchisement does not hold his lease direct from the freeholder ( schedule CARDINAL to LAW ) . These provisions do not , however , appear to be relevant in the present case .

The tenant may , at any time before the price of the property has been fixed , institute a procedure to have the rateable value of the house adjusted for the purposes of the legislation so as to leave out of account the value of structural improvements carried out by himself or his predecessors ( section CARDINAL and schedule CARDINAL of LAW ) . ORG is competent to determine disputes as to whether improvements are within the scope of the scheme and , since LAW came into force , there has been a right of appeal to ORG from such decisions .

The legislation lays down procedures for carrying the relevant transactions into effect and for determining disputes . Where the tenant wishes to acquire the freehold , he must first give the landlord written notice of his desire to do so ( section CARDINAL of LAW ) . Disputes over the tenant ’s entitlement to acquire the freehold under the LAW and related matters are within the jurisdiction of ORG ( section DATE CARDINAL Act ) . In such proceedings , ORG has powers to penalise in costs a tenant who is guilty of unreasonable delay or default in the performance of the obligations arising from the notice of enfranchisement ( ibid . ) . In default of agreement , the price payable is now subject to determination by a local ORG , with a right of appeal to the GPE - based ORG which forms part of ORG ( section CARDINAL and schedule CARDINAL of the DATE Act ) . Before the CARDINAL Act came into force , disputes as to price were within the jurisdiction of ORG ( section CARDINAL of LAW ) . It is open to a landlord who believes that the enfranchising tenant is deliberately or unnecessarily delaying the process of enfranchisement to refer the matter to ORG ( or , formerly , to ORG ) . Regulations prescribe a timetable for completion of the purchase after the price has been determined ( paragraph CARDINAL of Part I of the schedule to LAW Regulations DATE , ORG No . DATE ) .

For the purpose of assessing the price payable , the house is valued as at the date of the tenant ’s notice to the landlord of his desire to acquire the freehold ( sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ( d ) of LAW ) , and not as at the date when the valuation is being carried out .

In transactions completed DATE and DATE , the tenants of some CARDINAL long leasehold properties forming part of the residential Estate in GPE ( GPE ) which the GPE family and its trustees have developed ( see paragraph CARDINAL above ) exercised their powers under the contested legislation to acquire compulsorily the applicants’ interest as freehold owners of the properties . These transactions related to CARDINAL properties held on " premium " leases and CARDINAL properties held on " building " leases ( see paragraph CARDINAL above ) . The applicants explained that under the practice followed by ORG , the premiums were calculated on the following basis : first the rent under the lease was fixed as a percentage of the estimated market rent obtainable and then the premium was the calculated capitalised value of the balance of the estimated market rent over the term of the lease . The relevant properties were valued on the DATE basis in CARDINAL transactions and on the DATE basis in CARDINAL transactions ( see paragraph CARDINAL above ) .

As time passes , according to the applicants , LAW will affect an increasingly higher ratio of properties on their ORG . Since DATE , another CARDINAL enfranchisements have taken place , bringing up to a total of CARDINAL the number of properties enfranchised on the ORG under the leasehold reform legislation to date . The applicants estimate that there are likely to be CARDINAL further enfranchisements on their Estate in the future .

In each of the CARDINAL transactions the subject of the present case , the price paid was fixed by negotiation . The applicants were advised by their legal advisers that they had no grounds for disputing the right of any of the tenants to acquire the freehold , and that they could not reasonably hope to obtain a higher price for any of the relevant properties in proceedings before ORG or , in respect of the more recent transactions , a ORG .

The applicants drew attention to the following features of the individual transactions in question :

( i ) in no case except CARDINAL was the property built either by the tenant who enfranchised or by the tenant ’s predecessors ;

( ii ) in CARDINAL cases was the property occupied by members of the tenant ’s family continuously since the date of creation of the lease ;

( iii ) the period of occupation of the tenant prior to the date of his or her notice to acquire had varied from TIME ; in CARDINAL out of the CARDINAL instances , it had been DATE ;

( iv ) in all the cases , the tenant was entitled to security of tenure , subject to the conditions laid down by ORG , upon expiry of the lease ( see paragraph CARDINAL above ) ;

( v ) the period between the tenant ’s notice ( the relevant date for assessment of the price - see paragraph CARDINAL above ) and completion of the sale varied between one and DATE , and in CARDINAL of the CARDINAL transactions was DATE ;

( vi ) the unencumbered freehold value of the properties ( as assessed by the applicants ) varied from MONEY CARDINAL,CARDINAL , whereas the price paid for enfranchisement by the tenant varied from MONEY CARDINAL ;

( vii ) the value of the unexpired portion of the lease to the tenants was said to be up to £ MONEY - without taking into account the right to enfranchise ;

( viii ) in CARDINAL cases , the tenant sold the lease , after making the claim but before enfranchising , with the benefit of the right to enfranchise ;

( ix ) in CARDINAL out of the CARDINAL cases , the tenant who enfranchised did not remain in occupation of the property , but sold the freehold within DATE of acquiring it , and in CARDINAL of these cases did not occupy after enfranchisement at all ;

( x ) the profits said to have been made by the tenants on such onward sale varied from £ CARDINAL,CARDINAL to £ CARDINAL,CARDINAL , with CARDINAL cases where the tenant made MONEY ; in particular in CARDINAL case , the tenant who had come into occupation DATE before publication of the DATE ORG ( see paragraph CARDINAL above ) - and who had paid a low price ( £ MONEY ) for the lease , without prospect of enfranchisement at that time - was able to buy the freehold at MONEY of its proper value ( as assessed by the applicants ) , and sold it DATE for a profit of CARDINAL per cent - a profit of £ MONEY .

The losses claimed by the applicants to have been sustained through having to sell on the statutory terms as opposed to open - market conditions range from MONEY CARDINAL on each transaction , and total CARDINAL for properties in respect of which the DATE basis of valuation obtained and £ MONEY for properties in respect of which the DATE basis of valuation obtained .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE . He is represented before the ORG by ORG , ORG , GPE . The Government are represented by their Agent , PERSON , ORG , GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant along with another youth ( C. ) were arrested by the police for suspected involvement in offences relating to the theft of a ring and causing severe injuries to its owner , a boy aged CARDINAL . The victim was rendered unconscious as a result of the attack and had to be detained in hospital for DATE . He was treated for multiple and extensive bruising to his face and head as well as to the rest of his body .

At the time of the commission of these offences , the applicant was aged DATE and DATE .

On DATE the applicant , who had earlier been released on bail , was formally charged with the offence of robbery contrary to section CARDINAL ( CARDINAL ) of LAW DATE . He was again released on bail and attended ORG for the first time on DATE . C. failed to attend and a warrant was issued for his arrest .

At the first hearing before ORG on DATE , the applicant ’s lawyer obtained a DATE adjournment to allow him to consider the case outline served by ORG ( “ ORG ” ) . At the hearing , although the matter was discussed , no decision was taken as to the court ’s jurisdiction to sentence the applicant , if convicted , under LAW ) and ( CARDINAL ) of ORG “ the DATE LAW ) . The applicant was released on bail .

At the resumed hearing on DATE , ORG stated its intention to commit the applicant to ORG for trial , given that ORG had greater sentencing powers . The proceedings were adjourned until DATE to enable the case to be prepared for committal .

At the hearing on DATE , the ORG withdrew the robbery charge and replaced it with charges of theft contrary to LAW DATE and assault occasioning actual bodily harm contrary to section CARDINAL of the Offences Against LAW DATE ( “ the CARDINAL Act ” ) . ORG accepted jurisdiction over these charges since they were within its sentencing remit . The applicant pleaded not guilty . The case was adjourned for DATE to allow the ORG to obtain and review further medical evidence with a view to a possible preferment of a more serious charge of causing grievous bodily harm with intent , contrary to LAW .

According to the applicant , the ORG created unnecessary delay by not reviewing the charges earlier . There was no reason why the trial date could not have been fixed at DATE hearing and the medical evidence submitted in due course . Instead , ORG allowed a DATE adjournment to enable the ORG to review the medical evidence . In the applicant ’s view , the ORG should in any event have known the extent of the victim ’s injuries by DATE , without having to be given a DATE adjournment to review the medical evidence .

At the next hearing on DATE , ORG fixed a pre - trial review hearing for DATE and the trial for DATE . The medical evidence sought by the ORG was still not available . However , the ORG did not request a further adjournment .

On DATE ORG had to adjourn the pre - trial review since the co - accused C. had failed to attend . The pre - trial review was adjourned until DATE . On that occasion , the date of the trial was fixed for DATE . According to the Government , the applicant ’s representative did not object to these dates . The applicant denies this and states that objection was made regarding further delay .

On DATE the applicant failed to attend ORG . An application by the ORG to proceed in his absence was refused . A warrant was issued for his arrest .

The applicant turned up at ORG on DATE . He stated that he had forgotten that he was due to attend court DATE . The court adjourned the proceedings to CARDINAL DATE so that arrangements could be made for another trial date to be set .

At the directions hearing on DATE ORG fixed the date of the pre - trial review hearing for DATE . The trial was set down for CARDINAL DATE .

The pre - trial review had to be adjourned twice and was eventually held on DATE and again on DATE . On the latter occasions the defence made submissions on disclosure of materials in the possession of the ORG . The applicant points out that the ORG should have disclosed the materials requested at a much earlier stage of the proceedings , for example at the hearing on DATE .

In the meantime the applicant had turned DATE on DATE .

On DATE , CARDINAL days after the applicant was first arrested and DATE after his fifteenth birthday , trial commenced . The victim gave evidence and was cross - examined by live video link . The defence made unsuccessful applications for disclosure of evidence and to have other evidence excluded at the trial , especially the victim ’s evidence identifying the applicant and his co - accused .

On DATE the applicant was convicted of theft and assault occasioning actual bodily harm . ORG , pursuant to section CARDINAL of the GPE Court Act DATE ( “ the DATE LAW ) , committed the applicant to ORG for sentence , being of the view that its powers of sentencing were inadequate and that the applicant should be given a heavier sentence than it had power to impose .

On DATE ORG adjourned the case to CARDINAL DATE so that pre - sentence reports could be prepared . On that date His Honour PERSON , sitting with CARDINAL lay justices , sentenced the applicant to CARDINAL months’ detention in a Young Offender institution .

The applicant was given leave by a Single Judge to appeal to ORG against his sentence .

Before ORG counsel for the applicant contended that the sentence handed down was unlawful on the grounds that the fact that the applicant has passed his fifteenth birthday during the proceedings , but before conviction , meant that he should be liable only for the same penalties as a DATE . Accordingly , he maintained , a sentence of detention in a Young Offender institution could not be passed on him .

On DATE the appeal was refused . In dismissing the appeal , Mr Justice PERSON stated :

“ The simple truth is that [ the applicant ] was indeed fortunate not to have been charged with , and then convicted of , the even more serious offence of robbery . ... We consider that for the circumstances of the offence ... any right - thinking member of the public would have been appalled if the result had not been the deprivation of liberty of those who committed these offences against such a young boy and with such obvious violence and persistence which were involved in this case . It is urged upon us that because the co - accused has absconded and there was a delay of DATE between the commission of the offence and sentence , this would have enabled the court to impose a sentence of custody in a young offender institution . That sentence became available because [ the applicant ] had turned DATE between the date of the offence and the date of sentence . As a submission , that is entirely accurate . As a submission that leads this court to doubt the correctness of the sentence passed on [ the applicant ] , we not only doubt , we profoundly disagree . In any event it would have been open , given the seriousness of the offences with which [ the applicant ] was charged and been found guilty , to have considered sentencing under the provisions of section CARDINAL of ORG . ”

The applicant ’s request for an extension of the time - limit for an application to ORG to have a question of public importance certified for an appeal to ORG was refused on DATE . Lord Justice PERSON stated :

“ It may be some comfort to those who have appeared on behalf of this applicant to be reminded that in any event a case in which a sentence has been passed which was within the discretion of the sentencing court can not properly be regarded as a point of law of general public importance worthy of consideration of ORG . ”

There are CARDINAL kinds of criminal offences in LANGUAGE law :

summary offences ( triable only in ORG ) ;

“ either way ” offences ( triable either in ORG or on indictment in ORG ) ; and

indictable offences ( triable only in ORG ) .

The offences of which the applicant was eventually convicted and sentenced ( theft and assault occasioning actual bodily harm ) , were “ either way ” offences .

If an offender is aged DATE , neither ORG nor a ORG can pass a sentence of imprisonment , but they can pass a sentence of detention in a Young Offender institution . If the magistrates consider that their power of sentencing is inadequate , as occurred in the applicant ’s case , they may commit an offender to ORG for sentence .

A person DATE a juvenile DATE is normally tried in a ORG . According to section CARDINAL ) of LAW , a juvenile must be tried in a ORG , subject to defined exceptions , including where the magistrates sitting in the ORG consider that a juvenile accused , charged with particularly serious offences , could properly be sentenced under section CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG if he were convicted on indictment ( see below ) . In that event , the juvenile will be tried in ORG .

A ORG sentencing powers are less extensive than those of ORG . At the time the applicant came to be sentenced , the only form of custodial sentence available to ORG was detention in a Young Offender institution . Moreover , at the material time detention in a Young Offender institution was only available in respect of offenders whose age on the date of conviction ( according to ORG ) was DATE ( as in the applicant ’s case ) , CARDINAL or DATE . In this connection , section CARDINALA of LAW DATE provided at the date of the applicant ’s conviction :

( CARDINAL ) Subject to section CARDINAL below and to section CARDINAL of the Children and Young Persons Act CARDINAL , where -

“ ( a ) an offender DATE but not DATE is convicted of an offence which is punishable with imprisonment in the case of a person aged DATE or over ; and :

( b ) ( ... )

the sentence that the court is to pass is a sentence of detention in a young offender institution . ”

ORG was restricted to a maximum sentence of CARDINAL - months’ detention in a Young Offender institution for a single offence or a total maximum of DATE where , like the applicant , the offender was convicted of CARDINAL offences triable either way .

Pursuant to section CARDINAL of LAW , if a ORG found a CARDINAL , DATE or DATE guilty of an indictable offence or “ either way ” offence ( as in the applicant ’s case ) , and it was of the opinion that the offender should be sentenced to CARDINAL - months’ detention in a Young Offender institution ( or CARDINAL months’ detention in the case of an offender like the applicant convicted of CARDINAL offences ) , then it could commit him to ORG to be sentenced . Following committal , ORG could then pass a sentence of up to CARDINAL months’ detention in a Young Offender institution for the offence ( section CARDINAL of MONEY DATE ) , or deal with the offender in any way in which ORG could have dealt with him . Detention in a Young Offender institution can only be imposed inter alia if the offence was one of violence and the court was of the opinion that only a custodial sentence would be adequate to protect the public from serious harm , or that offence was so serious that only a custodial sentence could be justified .

In the case of offenders aged DATE or under ( like the applicant at the date of the commission of the offences of which he was eventually charged and convicted ) , ORG may , inter alia , impose a fine , make a compensation order or make a supervision order . It has no power in law to sentence an offender under DATE to a Young Offender institution for summary or “ either way ” offences . In addition , it has no power to commit such children to ORG for trial or for sentencing . There are exceptional circumstances in which children of CARDINAL may receive a custodial sentence . Thus , according to section CARDINAL of ORG , a young person aged DATE may be given a custodial sentence if he is convicted of an offence , such as robbery , punishable in the case of an adult with imprisonment for DATE or more , not being an offence the sentence for which is fixed by law . Of relevance to the applicant ’s case , under section CARDINAL of the Theft Act DATE the maximum sentence for an adult convicted on indictment of an offence of theft is DATE imprisonment . Of equal relevance to the applicant ’s case , under section CARDINAL of the Offences Against the Person Act CARDINAL the maximum sentence for an adult convicted on indictment of an offence of assault occasioning actual bodily harm is CARDINAL years’ imprisonment .

According to the Government , in LANGUAGE law the basic rule for determining what power the court has in relation to sentencing an offender is his age at the date of conviction . The age at the date of conviction rule , as opposed to the date of sentence , was approved by ORG in PERSON ( [ DATE ] PERSON ) and later in NORP v. Pespane ( CARDINAL Cr . App . R ( S ) CARDINAL ) , PERSON ( CARDINAL Cr . App . GPE ) CARDINAL ) and PERSON ( CARDINAL Cr . App . GPE ) CARDINAL ) .

The applicant draws attention to his view that LAW of FAC DATE contradicts the age - at - the - date - of - conviction - rule . This section makes provision for defendants who reach their eighteenth birthday after their case has begun in ORG . It reads :

“ Where proceedings in respect of a young person are begun ... for an offence and he attains the age of DATE before the conclusion of the proceedings , the court may deal with the case and make any order which it could have made had he not attained that age . ”

If a juvenile has not attained his or her eighteenth birthday at the time of plea , ORG has the power to hear the case and impose sentence . If the defendant ’s eighteenth birthday falls after the plea and before final disposal of the case , ORG may nevertheless sentence the defendant as if he or she was still a juvenile . If , however the juvenile has reached DATE by the time he or she is asked to enter a plea to the offence , the court must treat him or her as an adult ( NORP v. ORG , ex parte PERSON [ DATE ] ORG CARDINAL ) . In NORP v. West London Justices ex parte Siley PERSON ( reported in Criminal Law Review CARDINAL , p.p . CARDINAL - CARDINAL ) , ORG held that the relevant age for determining a juvenile accused ’s right to elect for jury trial was his age on the date he entered a plea of guilty .

The applicant further points out that the domestic case - law relied on by the Government is of limited value to the applicant ’s case since there are no decisions dealing with the situation of a DATE who becomes CARDINAL before conviction and thus moves from a non - custodial to a custodial bracket .


CASE OF SALAKHOV AND ISLYAMOVA v. UKRAINE

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The first applicant was born in DATE and died on DATE . The second applicant was born in DATE and lives in the town of GPE in GPE .

On DATE the first applicant tested HIV positive .

On DATE ORG the LOC ” ) informed him of the test results and invited him to register for medical monitoring . The first applicant did not , however , follow the advice ( see also paragraphs CARDINAL and CARDINAL below ) .

On DATE the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone . According to the second applicant , on DATE her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention . This information was allegedly ignored . According to the Government , the first applicant did not disclose his HIV status .

The first applicant was placed in FAC of ORG ( “ the ORG ” ) . The officer on duty examined him and reported that he had no visible injuries and had raised no complaints .

On DATE ORG ( “ the LOC ” ) remanded the first applicant in custody pending trial .

On DATE the first applicant was X - rayed in the local polyclinic ; no lung pathology was revealed .

On DATE he was taken from the ORG to ORG no . CARDINAL ( “ the GPE ” ) , where he was examined by a therapist ( general practitioner ) , a dermatologist , a dentist and a psychiatrist . All found him to be in good health . According to the medical records , the first applicant did not have any health - related complaints and did not report any illnesses . His height and weight were recorded as QUANTITY and QUANTITY respectively .

The first applicant was detained in the GPE from DATE , then subsequently from DATE , and from DATE to DATE . During the intervening periods , from CARDINAL DATE to DATE , from DATE , and from QUANTITY DATE , he was held in the ORG .

According to the records of his medical examinations of DATE and CARDINAL and DATE , he appeared to be in good health and did not raise any health - related complaints .

According to the GPE medical register , on CARDINAL , DATE and CARDINAL DATE the first applicant complained of nasal stuffiness , rhinitis , and a sore throat . The GPE therapist diagnosed him with an “ acute respiratory viral infection ” and prescribed medication .

As to the intervening period between the aforementioned records of CARDINAL DATE and CARDINAL DATE , no documents are available in the case file . The applicants submitted , however , that in DATE the first applicant ’s health had sharply deteriorated . He allegedly had a constant fever of DATE and suffered from serious digestive disorders . According to the applicants , the administration of the detention facilities called for an ambulance in that regard on many occasions . The nature of the ambulance interventions remained unclear .

On DATE the first applicant was additionally examined by an infectious disease specialist at the GPE , who issued a note stating the following . The first applicant had been complaining of experiencing fevers and losing weight for DATE . The doctor recommended an HIV test , to which the first applicant agreed . The test was scheduled for DATE . However , it did not take place because of the first applicant ’s transfer from the GPE to the ORG ( see paragraph CARDINAL above ) .

On DATE , following another transfer from the GPE to the ORG , the first applicant complained to the ORG medical attendant about feeling weak and having fever and back pain . The medical attendant administered some antipyretics to him .

On DATE the first applicant was taken to FAC , where he was examined by a therapist and underwent ultrasound scans of his liver , gallbladder , pancreas , spleen and kidneys . The following tests were also carried out : chest X - ray , electrocardiogram , esophagogastroduodenoscopy , as well as general blood and urine analyses . The therapist diagnosed the applicant with an ulcer , gastrointestinal hemorrhage , haemorrhoids , chronic bronchitis , and suspected HIV infection .

On DATE the Chief Doctor of ORG informed the second applicant , in reply to her enquiry of DATE , that her son had tested HIV positive on DATE , and had been informed of the result on DATE , but that he was not registered for monitoring in that ORG .

On DATE the first applicant was again taken to FAC , this time for examination by an infectious disease specialist . According to a note issued by the doctor , the first applicant complained to him about suffering from stomach aches , mouth lesions , a skin rash , coughing , and shortness of breath . He also complained of having lost QUANTITY during DATE . Having examined the first applicant , the doctor diagnosed him with pneumocystis pneumonia , oropharynx - esophagus candidiosis ( thrush ) and an ulcer . Moreover , he concluded that the symptoms disclosed HIV infection at the fourth clinical stage . While the doctor assessed the first applicant ’s condition as being “ moderately severe ” and noted that he required medical treatment for the aforementioned conditions , a general conclusion was reached that there was no urgent need for hospitalisation .

The first applicant ’s mother was informed of the diagnoses . She bought the prescribed medications , and the ORG medical attendant administered them to her son .

On DATE the first applicant ’s lawyer requested ORG to release his client on account of his critical state of health . He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia . The lawyer stated that the first applicant ’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care . Moreover , the lawyer pointed out , his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way . Furthermore , given his desperate health condition he did not present any danger to society .

ORG rejected the above - mentioned request ( this ruling is not available in the case file before the ORG ) .

On DATE ORG instructed the local police department to take the first applicant to FAC for another examination with a view to clarifying whether his state of health was compatible with detention .

On DATE the first applicant was taken to FAC , where he was again examined by an infectious disease specialist . The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage , which did not necessitate urgent hospitalisation . A further examination in FAC was recommended with a view to deciding on the necessary medical treatment . The doctor also made arrangements for the first applicant to have laboratory tests , such as blood and urine analyses and a sugar test , and a chest X - ray .

On DATE the applicants requested the ORG to indicate to ORG , under LAW , that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment .

On DATE the President of ORG decided to grant that request and to indicate to the respondent Government , under LAW , that the first applicant “ should be transferred immediately to a hospital or other medical institution where he [ could ] receive the appropriate treatment for his medical condition until further notice . ” On DATE , a working day ) a fax message was sent to the Government informing them of this decision .

On DATE the first applicant ’s lawyer once again requested ORG to release his client . He reiterated that the first applicant ’s life was in danger . The lawyer also referred to the aforementioned decision of the ORG regarding the application of Rule CARDINAL of ORG in the first applicant ’s case .

On DATE , DATE , following another enquiry by the NORP police about the need for the first applicant ’s hospitalisation , the Chief Doctor of ORG of ORG stated that the first applicant did not require urgent hospitalisation .

As a result , ORG rejected the first applicant ’s request for release submitted DATE .

On DATE the second applicant complained to the Chief Doctor of ORG about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on DATE , as well as twice on DATE . She insisted that his life was in danger . According to the second applicant , her son had never undergone a complete medical examination . She considered that the doctors were avoiding treating him because he was , firstly , HIV - positive and , secondly , a detainee .

On DATE the first applicant was taken to ORG , where the following diagnoses , classified as preliminary , were established : HIV infection at the fourth clinical stage , systemic candidosis of the oropharynx and oesophagus , continuous fever with expressed intoxication syndrome , a loss of body weight of PERCENT , and seborrheic dermatitis of the scalp . The doctors at ORG concluded that he required an additional examination with a view to clarifying the diagnoses , as well as inpatient medical treatment .

On DATE , he was transferred to FAC , where he was placed in a ward under police guard . According to the second applicant , her son was kept continuously handcuffed to his bed . She submitted to the ORG his CARDINAL photos taken on DATE . They showed the first applicant with his left hand handcuffed to the hospital bed . According to the letter of the First Deputy Minister of ORG to the Government Agent of DATE ( see also paragraph CARDINAL below ) , which referred to the first applicant ’s medical file in FAC , on DATE he arrived there handcuffed . However , it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital .

At some point on DATE the first applicant wrote an “ explanatory note ” to the police , according to which he had informed neither the GPE nor the ORG administration about his HIV infection “ for understandable reasons ” . After his mother had informed them that he might have that diagnosis , on CARDINAL and DATE he had undergone medical examinations in ORG resulting in the prescription of certain medication . The medical attendant had later administered that medication to him in the ORG . The first applicant stated that he had no complaints about the ORG staff . According to the second applicant , however , her son had written the aforementioned note under duress .

On DATE the first applicant wrote another note in which he stated that he had started to feel unwell during his detention ( the date is illegible on the available copy ) . He noted that he had sought examination by a therapist on account of his continuous fever , as well as kidney , liver and intestinal pain . The medical attendant had been sent to him instead and had merely given him antipyretics . As he had not got any better , at some point DATE the medical attendant had begun administering injections of ceftriaxone ( an antibiotic ) to him . The fever and backache had , however , not ceased . As a result , on DATE he had been placed in the GPE hospital , without any changes to his treatment . Following his transfer to the ORG , on DATE he had started to intake some other medicines which had been bought by his mother .

On DATE the first applicant ’s lawyer again requested the release of his client , referring to the seriousness of his condition , as well as to the fact that the prosecutor did not object to his release .

On DATE ORG requested the judge dealing with the first applicant ’s criminal case to bring forward the hearing scheduled for DATE given “ the critical condition ” of the first applicant and the need for him to undergo treatment in ORG no . CARDINAL , which specialised in the treatment of Aids ( “ Hospital no . CARDINAL ” ) . The prosecutor noted the necessity to examine the aforementioned release request promptly .

On an unspecified date ( possibly DATE see paragraph CARDINAL below ) ORG rejected the aforementioned request for the first applicant ’s release .

On DATE the Chief Doctor of ORG responded to the second applicant ’s complaint about the alleged failure to provide her son with the required medical assistance . He noted that the available medical records were insufficient for evaluating the development of his disease over time . The requests for medical assistance addressed to ORG had been of a contextual nature and assistance had been duly provided .

On DATE the first applicant was transferred from ORG to Hospital no . CARDINAL .

According to an extract from his medical record while in Hospital no . CARDINAL , his diagnoses included those established by ORG on DATE ( see paragraph CARDINAL above ) , plus the following : pneumocystis pneumonia , second - degree anaemia , heavy immunosuppression ( the CDCARDINAL count being QUANTITY ) , and encephalitis of unclear origin . Furthermore , toxic hepatitis , hepatolienal syndrome , superficial gastritis , and duodenogastric reflux were indicated as concurrent illnesses .

According to the letter of the First Deputy Minister of ORG to the Government Agent of DATE ( see also paragraph CARDINAL below ) , which further referred to information from the management of ORG no . CARDINAL , the first applicant had been handcuffed during his treatment in GPE no . CARDINAL from DATE to DATE . At the same time , it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant .

On DATE the ORG Governor examined the second applicant ’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter . He noted that the first applicant had hidden from the administration the fact that he was HIV - positive . In any event , he had received adequate medical care during his detention in the ORG .

On DATE the Chief Doctor of Hospital no . CARDINAL wrote to the Chief of ORG , stating that the first applicant required lengthy medical treatment , that he needed to be unrestricted in his movements , and that any interruption in his treatment would trigger a sharp deterioration in his health .

On DATE ORG found the first applicant guilty of fraud ( instead of the robbery charge advanced by the prosecution – see paragraph CARDINAL above ) and sentenced him to a fine of CARDINAL NORP hryvnias ( at the time equivalent of MONEY ) . It was noted in the judgment that , until it became final the first applicant was to remain in detention .

On DATE antiretroviral therapy began to be administered to the first applicant in GPE no . CARDINAL . According to the information provided by ORG in its letter to ORG of DATE , the first applicant had refused DATE apparently on CARDINAL occasion DATE to take the prescribed medication .

DATE . On DATE , DATE , the second applicant requested the Chief of ORG to allow her to visit her son and to take care of him in the hospital given his critical condition . She also complained to ORG about the first applicant ’s continuous handcuffing and sought its discontinuation .

On DATE the Chief of ORG replied to the second applicant that her son would in any case soon be released once the judgment of DATE became final .

On DATE the first applicant ’s lawyer also sought discontinuation of the handcuffing , noting that it was already clear that his client was about to die ; nevertheless , he remained guarded by QUANTITY police officers in a ward with barred windows , handcuffed to his bed . Such security measures were not only unjustified , but also inhuman . The lawyer further submitted that , as the second applicant had discovered , certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “ practically unrestrained ” .

On DATE the police lifted the security measures in respect of the first applicant ( apparently on the ground that the judgment of DATE had become final ) , and the second applicant took him home . She wrote a note to the administration of Hospital no . CARDINAL stating that she was taking her son home “ for family reasons ” .

On DATE , however , the first applicant was hospitalised again in GPE no . CARDINAL because of a deterioration in his health .

On DATE the second applicant took him home again , having written a note to the hospital administration similar to that of DATE .

On DATE the first applicant died .

Following the death of her son , the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which , according to her , had led to his death .

On DATE ORG informed her that the ORG governor ’s decision of DATE ( see paragraph CARDINAL above ) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed .

On DATE ORG set up a commission for investigating the matter .

On DATE the commission issued an official investigation report which concluded that ORG doctors bore no responsibility for the first applicant ’s death . It noted that although ORG had informed him about his HIV - positive status and had explained to him the necessity of medical monitoring DATE as on DATE , the first applicant had not sought any medical examinations or monitoring . As a result , the antiretroviral therapy had not been started in good time , thus complicating the development of the disease . The commission gave its general findings as follows :

“ CARDINAL . Medical care to persons in custody is the duty of the police medical staff .

Specialists of ORG do not provide medical consultations or examinations to persons in custody without being called on to do so by the [ detention facilities’ ] personnel .

The [ first applicant ] benefited from examinations , specialist consultations , laboratory tests and treatment in ORG fully and according to the approved standards .

The deterioration of [ his ] health and the complications are attributable to the delay in his application for medical care after testing HIV - positive , as well as the severity of the main disease , which triggered irreversible processes in [ his ] organism . ”

On DATE the second applicant again complained to ORG . She referred , in particular , to the allegedly unjustified conclusion of the infectious disease specialist of DATE , according to which her son had not required urgent hospitalisation at that time ( see paragraph CARDINAL above ) .

On DATE ORG refused to institute criminal proceedings against the police or ORG staff , finding the second applicant ’s complaint to be unsubstantiated .

On DATE ORG quashed the decision of DATE as further investigation was required , which was to include the following measures : questioning of the second applicant , the ORG staff , and ORG doctors concerned .

On DATE the second applicant was questioned by the prosecutor . She submitted that her son ’s health had started to deteriorate drastically in DATE and that he had not received prompt and adequate medical treatment . According to her , the administration of the detention facilities had merely called for an ambulance on several occasions . She insisted on the seizure and examination of all the medical documentation regarding her son – from the ORG , the GPE , ORG and Hospital no . DATE with a view to an evaluation of his medical needs and the actual response to them from DATE .

On CARDINAL DATE ORG refused to open criminal proceedings against the police or ORG staff , on account of lack of corpus delicti in their actions . He relied , in particular , on the conclusions of ORG commission ( see paragraph CARDINAL above ) , as well as statements by police officers and doctors .

On DATE ORG upheld that decision . It noted that the first applicant had himself raised no complaints against the police or medical staff . Furthermore , it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment .

On DATE ORG of GPE ( “ ORG of Appeal ” ) quashed the ruling of CARDINAL DATE and allowed the second applicant ’s appeal . It criticised the investigation , in particular , for its failure to give any consideration to the first applicant ’s state of health and the medical assistance , if any , provided to him in detention from DATE . Furthermore , the appellate court noted that the impugned ruling had been delivered by the first - instance court in the second applicant ’s absence and without any proof that she had been duly notified of the hearing . It remitted the case to ORG .

On DATE the First Deputy Minister of ORG sent a letter to ORG , in reply to the latter ’s enquiry following the communication of the application to the Government by ORG ( see also paragraphs DATE and DATE above ) . It contained the following conclusions :

“ CARDINAL . The reasons for the deterioration of the [ first applicant ’s ] health and the complications in the development of [ his ] disease were as follows : the delayed application of [ the first applicant ] to [ FAC ] for specific medical assistance ( since DATE ) , the seriousness of the main disease ( Aids ) , and the irregularities in his antiretroviral treatment ( there were refusals [ on his part ] to take the medication ) .

NORP The death of the [ first ] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held . It was caused by the gravity of the main disease , which triggered irreversible processes in [ his ] organism . ”

DATE . On DATE ORG quashed the decision of CARDINAL DATE ( see paragraph CARDINAL above ) and remitted the case to ORG for additional investigation .

On DATE ORG ordered a forensic medical examination with a view to responding to the following questions :

( CARDINAL ) Did ORG therapist establish correct diagnoses in respect of the first applicant on DATE ( for details see paragraph CARDINAL above ) ?

( CARDINAL ) Were the diagnoses established by the infectious disease specialist on DATE ( for details see paragraph CARDINAL above ) , as well as his conclusion that the first applicant did not require urgent hospitalisation , correct ?

( CARDINAL ) Given the diagnoses established on DATE , did the first applicant indeed not require urgent hospitalisation and could be detained in the ORG or the GPE ?

( CARDINAL ) Did ORG doctors prescribe correct medical treatment for the first applicant ?

( CARDINAL ) Did ORG doctors act correctly in ordering the laboratory tests for the first applicant ( blood and urine analyses , a sugar test , and chest X - ray ) only on DATE , and not on DATE ?

( CARDINAL ) On DATE , following a repeated enquiry by the NORP police as to the need for the first applicant to be hospitalised , the Chief Doctor of ORG of ORG issued a note stating that the first applicant did not require urgent hospitalisation . Did the doctor assess the seriousness of the first applicant ’s condition correctly ? Were her conclusions correct ?

( CARDINAL ) Was it lawful on the part of the medical staff of Hospital no . CARDINAL to discharge the first applicant on DATE , given that his mother ’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences ?

( CARDINAL) Were the actions of the medical staff in compliance with the legislation ? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant ?

On DATE ORG completed its expert report .

Referring to the absence of medical documentation regarding the first applicant ’s examination on DATE , it found it “ extremely difficult ” to answer question ( CARDINAL ) .

As to questions ( CARDINAL ) and ( CARDINAL ) , the experts concluded that the diagnoses established by the infectious disease specialist on DATE had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition , in particular , the fever and the haemodynamic parameters . The experts concluded that the doctor ’s finding that the first applicant ’s urgent hospitalisation was not required on DATE did not correspond to the diagnoses established . They noted that he had been diagnosed , in particular , with pneumocystis pneumonia , which would alone have warranted his urgent hospitalisation for in - patient medical treatment . The doctor ’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct ( this was apparently the reply to question ( CARDINAL ) , which was not specified ) .

In reply to question ( CARDINAL ) , the experts found that the LOC decision of DATE on the necessity of further laboratory examinations complied with the applicable medical standards . They noted that such laboratory tests had already been carried out on DATE ( from the documents in the case file it appears that the correct date was DATE see paragraph CARDINAL above ) , but had needed to be further verified .

NORP The expert commission replied to question ( CARDINAL ) that at the time of his examination on DATE the first applicant had required urgent hospitalisation and in - patient medical treatment .

As regards questions ( CARDINAL ) and ( CARDINAL) , the experts noted that they were not competent to make a legal assessment of the LOC actions . Given the absence of an autopsy report , the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death .

DATE . On DATE ORG instituted a criminal investigation into the failure of ORG doctors to comply with their professional obligations . This decision was mainly based on the expert commission ’s findings of CARDINAL DATE . It stated , in particular , as follows :

“ The prosecutor ’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence . The delayed hospitalisation and , accordingly , the delayed provision of medical assistance to [ the first applicant ] contributed considerably to the deterioration of his health , which amounted to a grave consequence for him . ”

There is no information in the case file on any further developments in this investigation or its outcome .

On DATE ORG delivered a decision refusing to institute criminal proceedings against the staff of the ORG or the GPE in connection with the medical assistance provided to the first applicant . Referring to the medical records of DATE and DATE , DATE , DATE and DATE and CARDINAL DATE , as well as later medical documentation , the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities .

On DATE ORG upheld that decision having dismissed the second applicant ’s complaint to that regard .

On DATE ORG quashed the ruling of the first - instance court and remitted the case back to it for fresh examination .

On DATE ORG again rejected the second applicant ’s complaint .

On DATE it however reconsidered its position , apparently after a repeated complaint from the second applicant . ORG quashed the prosecutor ’s ruling of CARDINAL DATE and remitted the case for additional investigation . It noted that the investigation undertaken only indirectly concerned the ORG personnel and did not concern at all the PERSON administration or medical staff . Moreover , the GPE personnel whose duty was to respond to the first applicant ’s complaints had not even been identified . ORG also observed the lack of information in the file as regards any record - keeping of the first applicant ’s health - related complaints or showing the absence of such complaints during his detention .

The ORG has not been made aware of any further developments .

The Rules on Medical and Sanitary Care in ORG and Penitentiaries , approved by Decree no . CARDINAL of DATE of ORG for ORG , stipulate that medical assistance to HIV - infected persons is to be provided on the same basis as to everybody else ( paragraph CARDINAL ) . The Rules also contain recommendations stating that accessible , informative and supportive counselling should be available before and after HIV - testing ( annex CARDINAL to paragraph CARDINAL ) .

The relevant provisions of Decree No CARDINAL/CARDINAL of DATE of ORG and ORG for ORG on LAW with HIV / Aids Detained in Prisons and ORG are summarised in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

DATE of the Pre - trial LAW ( DATE ) sets out rules governing the use of security measures , including the use of handcuffs . Prison officers are entitled to use force and special equipment , including unarmed combat , handcuffs and truncheons , with a view to suppressing physical resistance , violence , outrage ( безчинства

Article CARDINAL § CARDINAL of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “ debarring from the holding of certain offices or pursuing certain activities ” for a term of DATE , or by correctional work for DATE , or by restriction or deprivation of liberty for the same term .

The relevant extracts from the third ORG [ ORG ( CARDINAL ) CARDINAL ] of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

“ a. Access to a doctor

A prison ’s health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists . ...

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital . ...

Whenever prisoners need to be hospitalised or examined by a specialist in a hospital , they should be transported with the promptness and in the manner required by their state of health . ”

b. Equivalence of care

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient ’s evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

NORP The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”

The guidelines of ORG ( “ WHO ” ) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE .


Violation of P7-4;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested for having brought his girlfriend into the military compound without authorisation . At TIME he was taken to police station no . CARDINAL of ORG ( the “ police station ” ) .

According to reports by Captain PERSON and Lieutenant - Colonel N. , the applicant was drunk , behaved insolently and verbally abused police officers using obscene language . He ignored the rebukes and warnings issued to him . After he attempted to escape , the officers handcuffed him .

Major PERSON , the officer in charge of the police station , drew up an administrative offences report , noting that the applicant had committed offences under LAW ( “ Minor disorderly acts ” ) and CARDINAL ( “ Persistent refusal to comply with lawful police orders ” ) of LAW . The report was then submitted to the court .

On DATE FAC found the applicant guilty of an offence under LAW and sentenced him to CARDINAL days’ administrative detention . The judgment was not amenable to appeal and took immediate effect .

On DATE criminal case no . CARDINAL was opened against the applicant on suspicion of his having committed disorderly acts , an offence under LAW ( b ) of LAW , on DATE at the police station . The investigation was assigned to Major PERSON

On DATE Major PERSON ordered the applicant ’s detention on remand for “ disorderly acts , including resisting a public official dealing with a breach of public order ” .

On DATE CARDINAL further cases ( nos . CARDINAL and DATE ) were opened against the applicant . In case no . CARDINAL he was suspected of a violent sexual assault against minors . In case no . CARDINAL the applicant was charged with the theft of a tape recorder .

On DATE all CARDINAL cases were joined under the number CARDINAL and assigned to Major PERSON

On DATE the joined case file was transferred to an investigator with the GPE town prosecutor ’s office .

On DATE the applicant was formally indicted on all the above charges . His actions on DATE were additionally characterised as threatening violence against a public official ( LAW ) and insulting a public official ( LAW ) .

On DATE ORG delivered its judgment . It found the applicant guilty of aggravated rape of minors , relying on statements by CARDINAL victims , the GPE mother ( the victims were sisters ) , the applicant ’s wife and the applicant ’s girlfriend , and on the results of a forensic examination of the victims .

ORG acquitted the applicant of the offence under LAW CARDINAL for the following reasons :

“ On TIME in ... police station no . CARDINAL [ the applicant ] , in an inebriated state , swore at ... PERSON and PERSON , threatening to kill the latter . He refused to comply with a lawful request by PERSON , behaved aggressively , pushed PERSON away and attempted to leave . Having examined the evidence produced at the trial , the court considers that [ the applicant ’s ] guilt has not been established . On DATE [ the applicant ] was subjected to CARDINAL days’ administrative detention for the same actions [ characterised ] under ORG CARDINAL and CARDINAL of LAW . No appeal was lodged against the judicial decision , nor was it quashed . The court considers that there is no indication of a criminal offence under LAW ( c ) in the defendant ’s actions and acquits him of this charge . ”

ORG further found the applicant guilty of insulting a ORG official under LAW . It established that the applicant had sworn at Major PERSON and threatened him while the latter had been drafting the report on the administrative offence under LAW and CARDINAL in his office at the police station . Major PERSON ’s statements to that effect were corroborated by depositions from Captain PERSON LieutenantColonel N. and PERSON , who had also been present in PERSON ’s office .

Finally , ORG pronounced the applicant guilty of threatening violence against a public official under LAW . On the basis of the statements by ORG and the applicant ’s girlfriend it found that , after the administrative offence report had been finalised , the applicant and his girlfriend had been taken by car to the GPE district police station . In the car the applicant had continued to swear at Major PERSON He had also spat at him and said that , once released , he would kill him and abscond . Major PERSON had perceived the threat as a real one because the applicant had a history of abusive and violent behaviour .

NORP The applicant was sentenced to DATE and CARDINAL months’ imprisonment in a correctional colony and to mandatory treatment for alcohol addiction .

On DATE ORG upheld the judgment in its entirety on the applicant ’s appeal .

The relevant provisions of LAW of DATE ( in force at the material time ) read as follows :

“ Minor disorderly acts , that is , utterance of obscenities in public places , offensive behaviour towards others and other similar acts that breach the public order and peace , shall be punishable by a fine of DATE wages or by CARDINAL to CARDINAL months’ correctional work combined with the withholding of PERCENT of the offender ’s wages , or DATE if , in offender ’s character , these measures are not deemed to be adequate – by CARDINAL days’ administrative detention . ”

“ Persistent refusal to comply with a lawful order or a request by a police officer ... shall be punishable by a fine of DATE wages ... or by one to QUANTITY months’ correctional work combined with the withholding of PERCENT of the offender ’s wages , or DATE if , in offender ’s character , these measures are not deemed to be adequate – by CARDINAL days’ administrative detention . ”

NORP The relevant provisions of LAW of GPE ( version in force at the material time ) read as follows :

“ CARDINAL . NORP Disorderly acts , that is , serious breaches of the public order or flagrant displays of disrespect to the community , combined with the use of violence towards individuals or a threat to use violence or to destroy or damage the property of others , shall be punishable ... by CARDINAL years’ deprivation of liberty .

NORP The same acts , if committed :

( b ) [ “ б ” in the original ] while resisting a public official or another person fulfilling his or her duty to maintain the public order or dealing with a breach of the public order ;

( c ) [ “ в ” in the original ] by a person with a previous conviction for disorderly acts ,

– shall be punishable by CARDINAL mandatory work or by CARDINAL years’ correctional work or CARDINAL years’ deprivation of liberty . ”

“ CARDINAL . The use of violence not endangering life or health , or a threat to use such violence , against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of CARDINAL months’ minimum wages ... or by CARDINAL months’ detention or up to five years’ deprivation of liberty ... ”

“ Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of CARDINAL months’ minimum wages , ... CARDINAL ORG mandatory work or DATE correctional work . ”