David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

These CARDINAL applications challenge various bans on fox hunting and the hunting of other wild mammals with dogs in GPE .

The first application has been lodged by Captain PERSON , a NORP national who was born in DATE and lives in LOC . He is referred to below as the first applicant . His application relates to his challenge to the ban on hunting in GPE and his challenge , in separate legal proceedings , to a similar ban in GPE and GPE .

The second application has been lodged by ORG and CARDINAL other applicants whose details are set out in the appendix . They are all represented by PERSON . ORG is a non - governmental organisation , which seeks to influence legislation and public policy that has an impact on the countryside , rural people and their activities . At the time of the domestic proceedings set out below , it had CARDINAL ordinary members and CARDINAL associate members . The CARDINAL other applicants are NORP nationals who claim to have been affected by the ban in different ways . ORG and the CARDINAL other applicants in this application are referred to below as the second applicants . They sought to challenge the ban on hunting in GPE and GPE only .

NORP On the basis of the facts as stated in the domestic proceedings and by the applicants before this Court , the cultural and social background to hunting can be summarised as follows .

Hunting with hounds has a long history in rural GPE . While it encompassed the hunting of deer , hare and mink , before the bans took effect , the principal quarry were foxes . These were traditionally hunted as vermin in order to protect farm stock . Over time , hunting of various quarries evolved such that the activity was organised in a particular area around a “ PERSON ” . The modern PERSON usually involves a pack of hounds , horseback riders and others who follow the hounds on foot . Any given PERSON now has its own particular customs and practices , including codes , dress , etiquette and hierarchy . The hunting season traditionally runs from DATE until DATE ; most PERSON go out twice a week in that period , though larger ORG may do so more frequently . Within each PERSON there is a Master of Hounds and other positions . Hunts are regulated by ORG . Various charitable , community and social events have grown up around GPE across the country . Members of the hunting community share the responsibilities for the organisation of the PERSON , for example caring for the hounds of a ORG ; those involved also have a common duty to repair any damage to the land on which the PERSON takes place .

NORP In her witness statement before ORG ( see paragraph CARDINAL below ) , which was characterised by that court as “ largely unchallenged factually ” , the President of ORG , GPE , also stated that hunting was supported by the vast majority of farmers and land owners who allowed it to take place on privately owned land . She also averred that , in GPE and GPE , there were CARDINAL registered fox hunting packs , CARDINAL fox hunting club , CARDINAL beagle packs , CARDINAL harrier packs , QUANTITY , CARDINAL deerhound packs , CARDINAL minkhound packs and CARDINAL fell packs ( with CARDINAL affiliated fell packs ) . There were CARDINAL registered NORP gun packs and CARDINAL registered NORP hunting packs , although those registered with ORG were only a proportion of the total number of packs in GPE .

In the case of PERSON v. the NORP Ministers ( see paragraph CARDINAL below ) , ORG of ORG relied on a report prepared by ORG of ORG , which found that QUANTITY mounted hunts operated in GPE and that CARDINAL hunts based in GPE , GPE , regularly visited the NORP Borders region .

NORP In DATE , the Home Secretary asked a committee under the chairmanship of Lord PERSON to inquire into the various aspects of hunting and its impact . It was also asked to inquire into the consequences of any ban and how it might be implemented . After conducting hearings across GPE and GPE , ORG reported in DATE . It did not address whether hunting should be banned but said that it believed its report would help inform the debate that followed its publication .

In DATE , the Government introduced LOC in ORG , which offered CARDINAL choices : regulation , supervision or prohibition of hunting . The PERSON was not enacted as ORG voted for prohibition and ORG voted for supervision , which meant the PERSON could not pass before the DATE General Election .

A second PERSON was introduced by the Government in DATE which banned deer hunting and hare coursing but permitted fox , hare and mink hunting subject to registration . This was amended by ORG to reject registration in favour of a ban on hunting , subject to exceptions . The registration system was reinstated by ORG . In the following session of ORG , ORG passed a PERSON which banned hunting , again subject to exceptions . This PERSON became law ( LAW ) without the approval of ORG pursuant to ORG . For the provisions of LAW , see paragraph CARDINAL below .

The first and second applicants challenged the legality of LAW by way of judicial review , arguing that it was incompatible with their rights under LAW . A separate but related challenge was brought based on ORG law and the freedom to provide goods and services under LAW and DATE of LAW .

Having reviewed the factual evidence before it , as well as ORG , ORG considered the impact the ban would have on the applicants . It stated :

“ CARDINAL . We are distinctly cautious in assessing , so far as we have to , the short , medium or long term effects of a ban on hunting which is regarded as permanent . The evidence of individual claimants of the actual or anticipated effect on them is unchallenged , other than by general contentions whose force we find unpersuasive . There is bound , we think , to be a decline in riding to hounds . We hesitate to say how sharp that decline might be . ORG was similarly cautious . PERSON hunts will not , we suppose , all disband TIME . Still less will related social activities collapse immediately . On the other hand , we can not but suppose that there would be a substantial contraction of hunting related activities in the medium term . More importantly , for present purposes , we proceed on the scarcely contested basis that a significant number of individuals , of whom the individual claimants are representative , will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood . The extent to which they may be able to find alternatives is scarcely predictable . Some , no doubt , may not .

LAW will have a substantial general adverse effect on the lives of many in the rural community in GPE and GPE . It will have a direct effect on a significant number of individuals , of whom the individual claimants are representative . Some of these effects may not be immediate , but much of it is likely to happen in the short to medium term . ”

The High Court found , however , that the ban did not interfere with the private lives of any of the claimants . Nor was there an interference with their right to respect for their homes with regard either to those applicants who had land over which hunts passed or those whose homes were tied to their employment or business insofar as their employment or business would be affected by the ban . There was similarly no interference with the applicants ' rights under LAW . It also found that LAW was not applicable since membership of the hunting community was not a personal characteristic amount to a status analogous with those contained in that Article . ORG was , however , prepared to accept that there was an interference with their rights under LAW No . CARDINAL , though that interference mainly , if not entirely , constituted control of use , not deprivation of property .

The precise nature of that interference was a matter of dispute between the parties . The applicants alleged that there were CARDINAL interferences with property , grouped under CARDINAL heads . First , in respect of land , there were interferences arising from : ( i ) the use of land to hunt by the owner ; ( ii ) permitting others to hunt over one 's own land ; ( iii ) the value of land ; ( iv ) expense associated with the removal of buildings and equipment which was of use only in the hunting industry ; and ( v ) the reinstatement of land which had been modified specifically for hunting with dogs . Second , in respect of the livelihoods of certain of the applicants , there were interferences with : ( vi ) an individual 's job and/or livelihood ; ( vii ) the benefit of an existing contract of employment or contract for services related to hunting and ( viii ) goodwill in and/or the value of existing businesses which were reliant on the hunting industry for a large proportion of their income or the viability of their business . Third , in respect of other property , there were interferences as regards ( ix ) dogs ; ( x ) horses and vehicles ; and ( xi ) miscellaneous hunting equipment .

It was conceded by the Government that LAW interfered with the property covered in ( i ) , ( ii ) , ( ix ) , ( x ) and ( xi ) above and that LAW would be engaged to the extent that the LAW had the indirect consequence of diminishing the values of land or other property or of damaging the goodwill of a business . The High Court agreed . In addition , “ livelihood ” was to be regarded as falling between the marketable goodwill of a business , which was a possession , and a loss of future income , which was not . To the extent that LOC of ORG in PERSON ( see below ) had regarded “ livelihood ” as a possession , ORG declined to follow its ruling on that point .

Having reached these conclusions on Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , ORG nevertheless examined whether LAW was justified under LAW and CARDINAL § QUANTITY of the LAW and whether it was proportionate under LAW No . CARDINAL . That examination was joined to its examination of whether the LAW was justified for the purposes of the restrictions it placed on the free movement of goods and services as guaranteed by ORG law . It found that , for Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL , LAW pursued the legitimate aims of the prevention of disorder , protection of health or morals and the protection of the rights and freedoms of others and , for LAW No . CARDINAL and LAW ( if the latter were applicable ) , that it pursued “ legitimate objectives of public policy ” . The LAW was also in accordance with and prescribed by law for the purposes of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL ; no claim could be made that it lacked legal certainty or adequate procedural safeguards .

The first and second applicants ' claimed that the LAW was disproportionate because ORG had adopted a more restrictive measure than that proposed by the ORG and , further , that the LAW itself promoted cruelty to foxes because it only allowed them to be shot , which , in certain cases , wounded but did not kill outright . ORG rejected this argument , and instead found there was sufficient material for ORG to conclude that hunting with dogs was cruel and that it was open to it to decide that legislative schemes other than a ban were unworkable . In ORG view , the balance to be struck between the legitimate aim pursued and the interference with rights and freedoms it engendered was : “ intrinsically a political judgment and a matter of domestic social policy , incapable of measurement in any scientifically calibrated scale , upon which the domestic legislature had a wide margin of discretion . ”

ORG also found that , contrary to the first applicant 's submissions , no issues arose in respect of Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention . Claims originally made under ORG and CARDINAL made by the applicants were not pursued before the court .

The High Court gave the second applicants permission to appeal in respect of their claims under LAW and LAW No . CARDINAL and refused the first applicant permission to appeal . The second applicants duly appealed to ORG and the first applicant renewed his application for permission to appeal before that court .

Further evidence and witness statements were provided to ORG . The Government submitted that since the passage of LAW , hunts had continued in alternative forms such as drag or trail hunting , where mounted riders and hounded pursued an artificial scent rather than live quarry ; the applicants adduced evidence that this was an inferior and unrealistic alternative .

In respect of LAW found that it was not engaged and added :

“ We have reached the foregoing , clear , conclusions on the assumption that some at least of the consequences of LAW feared by the [ applicants ] will in fact eventuate ... But at the same time it is valuable to remind ourselves of circumstances in the real world . The new evidence adduced by the [ Government ] shows that things appear to have gone on very much as before , even if trail - hunting is regarded as a very inferior form of sport to the real thing . ”

The court reached a similar conclusion in respect of LAW :

“ We entirely agree with both of our predecessor courts [ ORG and ORG – see below ] that it can not be said that LAW interferes with the right of the [ applicants ] to assemble . All that it does is to prohibit a particular activity once the [ applicants ] have assembled . Moreover , LAW has now been in force for DATE , and the hunts have been assembling in greater numbers than ever . If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by LAW , that will be a matter for them . ”

On LAW , ORG followed the approach of ORG in accepting that that provision would only be engaged to the limited extent conceded by the ORG . ORG also upheld the reasoning of ORG as to the legitimate aims pursued by LAW and its proportionality . That conclusion applied equally to LAW No . CARDINAL and ORG CARDINAL and CARDINAL if , contrary to its conclusions , those ORG were engaged .

ORG found that the first applicant 's renewed application for permission to appeal , brought in respect of his separate claims under Articles CARDINAL , DATE , DATE and DATE , should be refused as it had no reasonable prospect of success . It also refused the second applicants permission to appeal to ORG . The second applicants then petitioned ORG and , on DATE , an ORG of ORG gave leave to appeal ( see paragraph CARDINAL below ) .

The Protection of Wild Mammals ( GPE ) Act was passed by ORG on DATE and entered into force on DATE . LAW prohibited the hunting of all wild mammals ( except rabbits and rodents ) with dogs ( see relevant domestic law and practice at paragraph CARDINAL below )

Together with CARDINAL other petitioner , the first applicant , as a member of the PERSON , sought judicial review of the LAW , contending that it was not within the legislative competence of ORG , inter alia , because it was incompatible with ORG DATE , CARDINAL , DATE and CARDINAL of the Convention .

The petition was dismissed by ORG of ORG on DATE . The Lord Ordinary found that Article CARDINAL was not engaged : hunting was a complex social activity , carried on under public gaze , which clearly extended beyond the sphere of purely private life . He also dismissed the argument made by the first applicant and his copetitioner that Article CARDINAL was engaged because hunting was so intrinsic to their way of life as to be their primary characteristic . Their case had to be distinguished from the gypsy lifestyle at issue in GPE v. the GPE [ ORG ] , no . CARDINAL , ORG DATE and the PERSON way of life at issue in PERSON and PERSON GPE , LOC FAC and ORG , Commission decision of DATE , ORG and Reports ( DATE , p. CARDINAL . A person 's profession or recreation might assume great importance in his life but that was quite different from the situation where an activity was so closely associated with the way of life of a particular group that it fell to be regarded as integral to the individual personality of every member of that group . Furthermore , the hunting community could not be regarded as a distinct ethnic group .

The Lord Ordinary rejected the applicant 's submissions that Articles CARDINAL , CARDINAL were engaged but indicated that , had he found any of ORG DATE to be engaged , he would nevertheless have held that ORG was entitled to come to the view that the ban was necessary in a democratic society and pursued the legitimate aim of the protection of morals .

For the Lord Ordinary Article CARDINAL could not apply because hunters could not be regarded as having a personal characteristic or status for the purposes of that Article ; fox hunting was a common activity engaged in by a heterogeneous group of individuals . To the extent that the first applicant continued to rely on it before him , the Lord Ordinary did not regard Article CARDINAL as relevant to the case . The same consideration applied to LAW : it did not confer any rights on which the petitioners could rely .

The applicant appealed to ORG of ORG . By this time , ORG had already given its judgment in PERSON the NORP Ministers , where , in a separate judicial review challenge brought by the NORP hunting community , it had found LAW to be compatible with LAW , CARDINAL and DATE of the Convention and LAW No . CARDINAL ( see paragraph CARDINAL below ) . On DATE , ORG refused the first applicant 's appeal . It found no reason to depart from the conclusions of ORG in PERSON or ORG in the present case that ORG DATE and CARDINAL were not engaged . It also upheld the Lord Ordinary 's ruling in respect of LAW was not pursued before ORG . The first applicant appealed to ORG ( see below ) .

On DATE ORG gave judgment on the first applicant 's appeal from ORG of ORG and the second applicants ' appeal from ORG . It unanimously dismissed both appeals .

In the second applicants ' appeal , Lord PERSON of NORP found that LAW was not engaged , judging the applicants ' complaints to be “ far removed from the values which LAW existed to protect ” . PERSON - hunting was a very public activity and therefore no analogy could be drawn between it and any of this ORG 's cases where the notion of personal autonomy was found to underlie the right to respect for private life . Nor could any analogy be drawn with G and E , cited above , or PERSON v. the GPE , DATE , Reports of Judgments and Decisions DATE , where the applicants belonged to distinctive groups , each with a traditional culture and lifestyle at issue that was so fundamental as to form part of its identity . The hunting community could not be portrayed this way . That certain of the applicants were prohibited from hunting on their land was not an interference with the right to respect for their home since , in ordinary usage , such land could never be described as home . For those applicants who complained that they stood to risk losing their homes from the hunting ban , this was not the necessary or intended consequence of LAW and none of them had been evicted or might ever be . Finally , the applicants relied on the case NORP and GPE v. GPE , nos . CARDINAL/CARDINAL and CARDINAL , ECHR CARDINALVIII , as authority for the proposition that there would be an interference through loss of livelihood as a result of the ban but , for Lord PERSON , this was a very extreme case which could be distinguished on its facts .

Lord PERSON was not content to treat LAW as inapplicable : the right to assemble was of little value if the applicants , having assembled to act in a certain way , were prohibited from carrying out that activity . He then took the same approach as ORG and ORG in considering whether LAW was justified under LAW and CARDINAL § CARDINAL and , to the extent that LAW No . CARDINAL applied , whether the LAW was a proportionate interference with the right to property . He concluded that it was : respect had to be paid to the recent and closely - considered judgment of ORG . Finally , for Lord PERSON , no claim could be made under LAW as no personal characteristic of any of the applicants could be described as an “ other status ” under that Article .

Lord Hope of PERSON and ORG of GPE agreed with Lord PERSON , save that neither found LAW to be engaged . For them , it was insufficient simply to find that LAW did not apply on the grounds that the effect of the ban was not to prohibit the assembly of a hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled . Instead , Lord Hope found LAW to be inapplicable because that Article did not guarantee a right to assemble for purely social purposes . The applicants ' position was no different from that of any other persons who wished to assemble in a public place for sporting or recreational purposes . It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy . ORG agreed : the kind of assembly protected by LAW had to be read alongside LAW and the democratic values those ORG sought to protect .

Lord PERSON of PERSON - under - Heywood agreed that LAW was not engaged but stated his strong wish that it were otherwise and that the scope of LAW should be developed by ORG . He also agreed that LAW was not engaged but that LAW No . CARDINAL was . As to proportionality , Lord PERSON was prepared to accept that moral objection to hunting as expressed in LAW was sufficient justification for the “ comparatively slight ” interference with the applicant 's property rights . However , LAW CARDINAL § CARDINAL he regarded the test to be much stricter and was unable to regard such an ethical objection to hunting as a sufficient basis for holding the ban to be necessary .

Lord PERSON of PERSON agreed in particular with the reasons given by PERSON and also found that LAW was not engaged . He accepted that certain activities could be regarded as integral to a person 's identity and so form part of their private life for the purposes of LAW . He also considered the activities which PERSON had been photographed doing in public in GPE v. GPE , no . CARDINAL , ECHR CARDINALV ( horse riding , riding her bicycle , playing tennis and going to the market ) and suggested that if photographing her doing these things interfered with her rights under LAW , then a law banning her from these activities would have constituted a greater interference . However , a distinction had to be drawn between , on the one hand , doing such activities simply for one 's own enjoyment and the development of one 's personality and , on the other , carrying out the same activity for a public purpose , where one could not be said to be acting for personal fulfilment alone . In the latter , a person might still be developing his or her personality through the activity but would have left the sphere in which they would be entitled to the protection of LAW . He agreed with ORG of ORG in PERSON that a hunt took on the character of spectator sport and a public spectacle and thus that the applicants were not entitled to the protection of LAW .

The first applicant 's appeal was dismissed for the same reasons . Lord Hope delivered the lead speech with which the other CARDINAL law lords concurred , subject to their opinions in the appeal brought by the second applicants . He upheld the finding of the Lord Ordinary and ORG that Articles CARDINAL and CARDINAL had no relevance to the first applicant 's basic argument that ORG ( Scotland ) Act was outside the legislative competence of ORG because it was incompatible with the Convention . He also upheld the lower courts ' findings that ORG and CARDINAL were not engaged . To the extent that it was necessary to consider the justification for LAW , Lord Hope considered that there was adequate factual information to entitle ORG to conclude that foxhunting inflicted pain on the fox and that it constituted cruelty . The question of necessity was “ pre - eminently one for the ORG ” .

Section CARDINAL of the CARDINAL Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt . Classes of hunting which are exempt are specified in Schedule CARDINAL of the Act . Under section CARDINAL , it is a defence for a person charged with an offence under section CARDINAL to show that he reasonably believed that the hunting was exempt .

Exempt hunting includes : ( i ) stalking a wild mammal , or flushing it out of cover , if the conditions in paragraph CARDINAL of the Schedule are satisfied . The conditions include : ( a ) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause ; ( b ) that it does not involve the use of CARDINAL dogs ; nor ( c ) the use of CARDINAL dog below ground otherwise than in accordance with paragraph CARDINAL of the Schedule . The conditions in paragraph CARDINAL include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot ; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground . Further exemptions , subject to conditions , are made for the hunting of rats and rabbits , the retrieval of hares which have been shot , for falconry , for the recapture or rescue of a wild mammal , and for research and observation of a wild mammal .

Section CARDINAL creates offences by a person who knowingly assists hunting which is banned under section CARDINAL . Section CARDINAL(CARDINAL ) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and CARDINAL or more dogs are employed in that pursuit , whoever employs , controls or directs the dogs .

Section CARDINAL bans hare coursing , which is defined as “ a competition in which dogs are , by the use of live hares , assessed as to skill in hunting hares ” .

A person guilty of an offence under LAW is liable on summary conviction to a fine of MONEY CARDINAL,CARDINAL . Conviction may lead to the forfeiture of any dog , vehicle or other article used for the purpose of prohibited hunting .

Section CARDINAL of the DATE Act makes it a criminal offence deliberately to hunt a wild mammal , for the owner or occupier of his land to permit it to be used for that purpose and for the owner of a dog to permit it to be used for the same . By section CARDINAL rabbits and rodents are excluded from the definition of a wild mammal . Exemptions are made in sections DATE ( subject again to conditions ) for stalking and flushing from cover , falconry and shooting , retrieving and locating wild mammals . Section CARDINAL gives the NORP Ministers the power to specify further “ excepted activities ” , which will not constitute an offence under section CARDINAL . By section CARDINAL(CARDINAL ) a person guilty of an offence under the LAW is liable on summary conviction to imprisonment for DATE or a fine of up ORG MONEY or both .

The petitioners in this case sought to challenge LAW by way of judicial review , similarly relying on Articles CARDINAL , CARDINAL and DATE of the Convention and LAW No . CARDINAL . They were unsuccessful at first instance before the Lord Ordinary in ORG of ORG . They appealed to ORG of ORG , which dismissed the appeal on DATE . ORG took note of an expert report submitted by the petitioners , which found that the end to traditional foxhunting would bring the “ collapse of an entire social and cultural world ” and result in “ profound and deeply felt social and cultural impoverishment ” in ORG . However , ORG CARDINAL , CARDINAL and DATE were not engaged . For LAW No . CARDINAL , the ORG found that the LAW did not amount to de facto expropriation of possessions related to hunting ( in particular one of the petitioner 's hounds ) but rather control of the use of property and thus there was no requirement for the LAW to provide a scheme of compensation . It was accepted that LAW No . CARDINAL was engaged to the extent that the LAW restricted the use to which the petitioners put their land and hounds . The ORG also sustained the finding of the Lord Ordinary that CARDINAL of the petitioner 's economic interest in making his livelihood as a self - employed manager of foxhounds was a possession within the meaning of that Article . In doing so , it relied on this ORG 's rulings in ORG v. GPE , DATE , Series A no . CARDINAL ; PERSON and Others v. the GPE , DATE , Series A no . CARDINAL and the ORG 's decision in GPE v. GPE , no . CARDINAL/CARDINAL , DATE , ORG and Reports ( DATE , p. CARDINAL . However , for that livelihood and the other possessions of the petitioners , ORG had struck an appropriate balance : it had conducted extensive inquiries before legislating and had acted within the scope of its discretion in judging that foxhunting should be prohibited .


Violation of Art. 5-3;Violation of Art. 6-1

Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in PERSON .

In DATE the applicant was charged with assault and battery . On DATE the Zielona ORG ( PERSON ) convicted the applicant as charged . The conviction was upheld by ORG ( Sąd Apelacyjny ) on DATE . On DATE ORG ( Sąd Najwyższy ) dismissed the applicant 's further cassation appeal .

On DATE the applicant was arrested on suspicion of homicide . On DATE the ORG ( Sąd Rejonowy ) ordered the applicant 's detention on remand on a charge of murder .

During the investigation , the applicant 's detention was prolonged on CARDINAL occasions .

On DATE the applicant was indicted before the Zielona ORG . ORG extended his detention on remand on several occasions . The court referred to the reasonable suspicion that the applicant had committed the offence with which he had been charged . It further stressed that holding the applicant in detention was necessary to secure the proper conduct of the proceedings . These decisions were upheld on appeal . The applicant made several unsuccessful applications for release .

On DATE ORG prolonged the applicant 's detention . The court relied on the existence of a reasonable suspicion against the applicant and on the likelihood that a heavy sentence of imprisonment might be imposed on him . ORG also examined the course of the proceedings and established that they had been lengthy . It instructed the trial court to concentrate on scheduling more hearings and on taking other procedural measures to terminate the trial promptly . The court , nevertheless , stated that the applicant had been solely responsible for the duration of the trial as ORG had to examine his allegation that he had acted in self - defence .

DATE and DATE the applicant was serving a prison sentence following his conviction in another set of criminal proceedings .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

On DATE , DATE and DATE the PERSON Regional Court prolonged the applicant 's detention . All of these decisions were upheld on appeal .

On DATE the prosecutor filed an appeal against the firstinstance conviction .

On DATE the ORG of Appeal quashed the firstinstance conviction and remitted the case to ORG .

On DATE , CARDINAL DATE and DATE ORG prolonged the applicant 's detention . In its identically reasoned decisions the court referred to the likelihood that the applicant would receive a lengthy sentence . It also pointed out that there were no particular circumstances militating in favour of his release , as defined in LAW .

DATE and DATE the applicant was serving a prison sentence as a result of his conviction in another set of criminal proceedings against him .

On DATE ORG prolonged the applicant 's detention . It considered that the need to ensure the proper course of the proceedings and the likelihood that the applicant would receive a lengthy sentence justified the prolongation of his detention . The court further stressed that the trial would end soon since most of the witnesses had already been heard .

On DATE the applicant filed a complaint alleging that the proceedings against him had exceeded a reasonable time and requesting compensation for the prolongation of the proceedings . He relied on the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . On DATE the ORG of Appeal gave a decision and confirmed that the proceedings before ORG had been lengthy . However , it refused to award any compensation to the applicant .

On DATE the ORG convicted the applicant of murder and sentenced him to DATE imprisonment .

On DATE the ORG of Appeal quashed the firstinstance conviction and again remitted the case .

On DATE ORG refused to release the applicant on bail .

NORP The applicant again asked to be released on bail .

On DATE the ORG refused to release the applicant on bail and further prolonged his detention until DATE . It considered that there was a risk that the applicant , if released , would interfere with the proper course of the proceedings . It also held that DATE the applicant had been convicted CARDINAL times and that the charges against him had included unlawful possession of a firearm . This decision was upheld on appeal on DATE .

On DATE ORG dismissed the applicant 's complaint under LAW about the alleged inactivity of ORG . The court examined only the period after DATE as the period before that date had already been examined . The court concluded that there had been no delays in the proceedings after that date .

On DATE ORG again prolonged the applicant 's detention . The court stressed that there were no particular circumstances militating in favour of his release , as defined in Article CARDINAL § CARDINAL of the Code of Criminal Procedure . This decision was upheld by ORG on DATE .

On DATE the applicant was released from pre - trial detention . It appears from the parties ' submissions that the criminal proceedings before the ORG are pending .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant was born in DATE . After a number of periods in prison and hospital the applicant was admitted to ORG ( “ LOC ” ) from prison under sections DATE and CARDINAL of LAW DATE on DATE . He remained an in - patient until DATE , when he was discharged by ORG . DATE he was arrested and charged with a number of offences and was admitted , from prison , to a medium secure unit in DATE . In that unit he became increasingly psychotic , aggressive and violent . He was placed in seclusion and transferred to GPE on DATE . While at LOC he has been secluded on a number of occasions for the protection of others : between CARDINAL–CARDINAL DATE , CARDINAL–CARDINAL DATE , DATE and CARDINAL March–CARDINAL DATE . Each period of seclusion involved confinement to his bedroom or another room ; however , during each period of seclusion , the applicant was allowed periods of association either with staff or other patients . These periods ranged from TIME to over TIME . In the first period of seclusion , he had DATE half ORG association in total ; in the second , CARDINAL ORG association ; in the third , CARDINAL hours’ association ; and in the fourth , CARDINAL NORP association . There was DATE , DATE , when the applicant was not allowed any association at all .

Each period of seclusion was made by LOC pursuant to its seclusion policy ( “ the policy ” : see paragraphs CARDINAL–CARDINAL below ) . There is a national Code of Practice , issued by the Secretary of ORG under LAW , which includes a section on seclusion of psychiatric patients ( see paragraphs CARDINAL–CARDINAL below ) . The applicant maintains that the hospital ’s seclusion policy differs substantially from the LAW , particularly by reducing the number and frequency of reviews of his seclusion by a doctor from that laid down in the LAW .

The applicant first challenged LOC ’s seclusion policy on this basis in ORG in DATE . On DATE , ORG found that the hospital ’s policy , by reducing the frequency of review of a patient ’s seclusion below that provided for in DATE , was unlawful and was not justified by the fact that the hospital was a maximum secure hospital . In particular , the failure after DATE of seclusion to have twice - daily medical reviews of the continuation of seclusion was not justified .

Ashworth did not change its policy and the applicant commenced further judicial review proceedings on DATE . In DATE , the hospital adopted a new policy , providing for medical review of the continuation of the use of seclusion twice DATE on DATE of the seclusion and thereafter CARDINAL reviews a week by a doctor and a DATE multidisciplinary review . The applicant continued to challenge the legality of the policy on the grounds that DATE CARDINAL onwards it did not comply with the review procedures found necessary by ORG . He also argued that LAW suggested that there should be medical reviews TIME . Finally he argued that the hospital ’s policy was incompatible with Articles CARDINAL and CARDINAL of the Convention .

On DATE , ORG ruled that the minimum level of severity required for DATE was not met and there was no breach of LAW . It also found that LAW was merely guidance . ORG also accepted the evidence of GPE that the applicant had not remained in seclusion for longer than had been necessary , and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion .

The applicant appealed to ORG and , on DATE , it allowed his appeal . Relying on X v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , Decisions and Reports ( GPE ) CARDINAL , p. CARDINAL ( cited in the judgment as A. v. GPE ( DATE ) CARDINAL EHRR CARDINAL ) , it found that seclusion of a detained psychiatric patient was capable of amounting to a breach of Article CARDINAL . On the basis of this ORG ’s ruling in PERSON v. GPE , no . CARDINAL , § § CARDINAL , ECHR CARDINALIII , it also found that LAW , in so far as it regulated seclusion , had to have a status and weight consistent with the ORG ’s obligation to avoid ill - treatment of patients detained by the ORG . Where there was a risk that agents of the ORG would treat their patients contrary to LAW , the ORG should take steps to avoid this through the publication of LAW , which its agents were obliged to follow unless they had good reason to depart from it .

ORG also held that seclusion would breach LAW unless it could be justified under LAW . In considering the need for any interference to be “ in accordance with law ” in terms of LAW , it found that the transparency and predictability required by this provision were supplied by LAW . It found :

“ It would fly in the face of the original purposes of the LAW if hospitals or professionals were in fact free not to follow it without a good reason . It is clear that section PERSON ) ( see para CARDINAL above ) can not have been intended as a ‘ take it or leave it’ provision . In relation to those matters where a patient ’s human rights are or may be engaged , the arguments for according the Code the greater status are compelling . Where there is a risk that agents of the state will treat its patients in a way which contravenes LAW , the state should take steps to avoid this through the publication of LAW which its agents are obliged to follow unless they have good reason to depart from it . Where there is an interference with the rights protected by LAW , the requirement of legality is met through adherence to LAW again unless there is good reason to depart from it . The same will apply where the LAW deals with the deprivation of liberty within the meaning of Article CARDINAL .... We conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient . They may identify good reasons for particular departures in relation to groups of patients who share particular well - defined characteristics , so that if the patient falls within that category there will be a good reason for departing from the Code in his case . But they can not depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the PERSON ’s definition of seclusion and its requirements . ”

It concluded that the hospital ’s seclusion policy was unlawful . While the court considered LAW on its own motion , relying on this ORG ’s rulings in PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , PERSON GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL and PERSON v. GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , it found that seclusion did not amount to a further deprivation of liberty .

Ashworth appealed to ORG . On DATE ORG ( by a majority of CARDINAL ) allowed the appeal .

In the lead speech , Lord PERSON ( with whom Lord Hope and Lord PERSON agreed ) found that LAW was only guidance and he was satisfied that the hospital had shown good reasons for departing from it . He stated :

“ DATE . It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have . It is what it purports to be , guidance and not instruction . But the matters relied on by PERSON show that the guidance should be given great weight . It is not instruction , but it is much more than mere advice which an addressee is free to follow or not as it chooses . It is guidance which any hospital should consider with great care , and from which it should depart only if it has cogent reasons for doing so . Where , which is not this case , the guidance addresses a matter covered by section PERSON ) [ of LAW DATE see paragraph CARDINAL below ] , any departure would call for even stronger reasons . In reviewing any challenge to a departure from the LAW , the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires .

The extensive evidence adduced by the ORG makes clear that the LAW was very carefully considered . This is indeed evident from the policy itself , which reproduces important parts of the LAW and contains cross - references to it . But the policy did depart from the LAW in providing for less frequent medical review after DATE . As the [ High Court observed ] , the Trust ‘ has explained the justification for the policy in very considerable GPE . ...

In considering the frequency of medical review after DATE the Trust were in my opinion entitled to take account of CARDINAL matters in particular . First , as pointed out in the Introduction to the policy , the LAW was directed to the generality of mental hospitals and did not address the special problems of high security hospitals , containing as they inevitably do the most potentially dangerous patients in the country . Secondly , the Code did not recognise the special position of patients whom it was necessary to seclude for longer than DATE . It has been the experience of the Trust that the condition of those secluded for DATE does not change rapidly , and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure . Thirdly , the statutory scheme , while providing for the Secretary of ORG to give guidance , deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining , treating , nursing and caring for the patients .

The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of PERSON , PERSON and ORG . This is a highly controversial subject , on which professional opinions differ . The DATE divide between short - term and long - term secluded patients is criticised . So is the practice , adopted at LOC , of allowing secluded patients to spend periods of time , sometimes lengthy periods , in closely supervised association with other patients . There are differences of practice , not all of them fully explained , between GPE , ORG and ORG . It is not , however , for the courts to resolve debatable issues of professional practice , but to rule on issues of law . If a practice is supported by cogent reasoned justification , the court is not entitled to condemn it as unlawful . In the present case , even with the intense scrutiny called for , I can not regard the long and detailed statements submitted by ORG as failing to show good reasons for adopting the policy it has adopted , even though there are many eminent professional experts who take a different view . ”

Lord GPE found that Article CARDINAL was not breached by the policy . He held as follows :

“ CARDINAL ... Despite much learned argument addressed to the ORG , I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen . For I agree with [ ORG ] that the policy must be considered as a whole , that the policy , properly operated , will be sufficient to prevent any possible breach of the article CARDINAL rights of a patient secluded for DATE and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights . The patient must be the subject of recorded observation by a nurse at least TIME and of recorded review by CARDINAL qualified nurses TIME , CARDINAL of them ( where practicable ) not involved in the decision to seclude . In the ordinary course of things it is the nurses who know the patient best , and the nurse in charge of the ward can terminate seclusion at any time . There must be a DATE review by a ward manager or site manager of a different ward : these , as the evidence shows , are senior and experienced people . There must be CARDINAL medical reviews DATE , CARDINAL of them involving the patient ’s responsible medical officer . There must in addition be a DATE review by a multi - disciplinary patient care team , including the patient ’s RMO [ Resident Medical Officer ] . The seclusion of the patient must be monitored by the hospital ’s ORG , which includes the medical director , the hospital director , the head of psychology , the senior nurse , the head of social care , CARDINAL nurses , the ward manager and a non - executive director of the Trust , some of whom must have seen the patient . It reports to the hospital ’s ORG . ORG must be informed once a patient has been secluded for DATE and must thereafter receive regular progress reports : as already noted , it has statutory power to visit and investigate any complaint . The patient may , wherever possible , be visited by a relative . The patient or his representative may appeal to the medical director or his deputy , who must review the case and take account of any representations made . The patient may seek judicial review of the decision to seclude him or continue to seclude him , or to challenge the conditions in which he is secluded . It can not in my opinion be said , bearing in mind that the standard set must obtain in all member states of ORG , that a policy containing these safeguards exposes a patient secluded for DATE to any material risk of treatment prohibited by article CARDINAL . ”

On DATE , Lord PERSON endorsed ORG finding that it did not apply and added :

“ The approach to residual liberty which appears to have prevailed in GPE ( see PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL ) does not , as I understand , reflect the jurisprudence of ORG . I do not for my part regret this conclusion since , as ORG pointed out ( in para CARDINAL of its judgment ) , improper use of seclusion may found complaints under article CARDINAL or article CARDINAL , and article CARDINAL(CARDINAL ) provides that a successful challenge should result in an order that the detainee be released , not in an order that the conditions of his detention be varied . I would not , for example , understand article CARDINAL(CARDINAL ) as enabling a prisoner , lawfully detained , to challenge his prison category . In any event , the LOC policy , properly applied as CARDINAL must assume , does not permit a patient to be deprived of any residual liberty to which he is properly entitled : seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected . ”

On DATE Convention , Lord PERSON doubted that seclusion , when properly used in order to protect others from violence and intimidation and when used for the shortest period necessary , was an interference with a patient ’s LAW . He considered that “ a detained patient , when in his right mind or during lucid intervals , would not wish to be free to act in such a way [ to be violent or intimidating ] and would recognise that his best interests were served by his being prevented from doing so . ” However , for Lord PERSON , if there were an interference then the “ in accordance with law ” requirement of LAW had not been breached . He found ( at paragraph CARDINAL of the judgment ) :

“ The requirement that any interference with the right guaranteed by article CARDINAL(CARDINAL ) be in accordance with the law is important and salutary , but it is directed to substance and not form . It is intended to ensure that any interference is not random and arbitrary but governed by clear pre - existing rules , and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied . This could of course have been achieved by binding statutory provisions or binding ministerial regulations . But that was not the model ORG adopted . It preferred to require the Secretary of ORG to give guidance and ( in relation to seclusion ) to call on hospitals to have clear written guidelines . Given the broad range of institutions in which patients may be treated for mental disorder ... it is readily understandable why a single set of rules , binding on all , was thought to be undesirable and perhaps impracticable . It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a ‘ necessary ingredient flowing from a power of detention for treatment’ treatment ” : see ORG in R v ORG , ORG , H and D ( DATE , unreported ) and ORG judgment in the present case , para CARDINAL . The procedure adopted by the Trust does not permit arbitrary or random decision - making . The rules are accessible , foreseeable and predictable . It can not be said , in my opinion , that they are not in accordance with or prescribed by law . ”

Lord Hope , in agreeing with Lord PERSON , stated :

“ In my opinion there is nothing that is arbitrary about the way in which LOC has departed from the LAW in the framing of its Policy . A careful reading of it shows that it is based very substantially on the PERSON ’s guidance , and that where it departs from it – with regard to the frequency of reviews in DATE it does so because of its perception of the way seclusion needs to be used in the special circumstances that obtain at LOC . The system that it lays down has been carefully designed to deal with its use for much longer periods than the Code ’s guidance was designed for . Its purpose is to ensure that its use for these longer periods is not resorted to at random or arbitrarily . Following the Code ’s example , that is the whole purpose of the Policy .

As for the question whether LOC was free to depart from the Code as a matter of policy , and not just in relation to individual patients or groups of patients , I do not see why this should be so , provided of course that it can demonstrate that it had a good reason for doing so . The distinction which ORG made between a departure in the case of individual patients or groups of patients and a departure which takes the form of a written policy for dealing with a particular form of intervention is elusive , and I do not think that it can be regarded as acceptable . There is an obvious danger that , if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available , decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable . That , precisely , is what ORG Policy seeks to avoid . Good clinical and medical practice dictates that seclusion should only be used in particular situations to protect others and subject to particular conditions to ensure that the patient is not harmed or secluded for any longer than is necessary . The purpose of the Policy is to ensure that the conditions under which it is to be resorted to are clearly understood and carefully observed so that decisions that are taken about the management of this procedure are consistent and not arbitrary .

I am in full agreement with all that my noble and learned friend Lord PERSON of ORG - under - Heywood has said about this case except with regard to the issues raised by article CARDINAL(CARDINAL ) of the ORG , as to which I have the misfortune to disagree with him . The point that divides us is whether the practice of seclusion carried out at LOC in accordance with the Policy is “ in accordance with the law . ” As his quotation from para CARDINAL of the ORG ’s judgment in PERSON and ORG ) CARDINAL EHRR CARDINAL reminds us , it is the quality of the law that matters rather than the form it takes . The touchstones by which its quality is measured are , as Lord PERSON says , its transparency , its accessibility , its predictability and its consistency . Where these qualities are present the measure protects against the abuse of power and against conduct which is arbitrary . There is no doubt that the LAW satisfied these tests , notwithstanding the fact that there is no statutory obligation to comply with it . In my opinion Ashworth ’s Policy , which is careful in all these respects to follow the PERSON ’s example , does so too . It is , of course , true that LOC could alter its Policy . But if it did so every departure from the Code would have to be justified in the same way as the Policy itself has had to be justified . I do not think that the fact that LOC has its own Policy opens the door to further departures from the LAW that could be described as arbitrary .

Assuming , of course , that LOC has shown - as it has - clearly , logically and convincingly that it had cogent reasons for departing from the LAW in these particular respects in favour of its own Policy , I would hold that its decision can not be said to have been unlawful . Concerns that a departure from the LAW in this instance will lead to widespread variations in practice and undermine its status generally or that your Lordships’ judgment lowers the protection offered by the law to mentally disordered patients are misplaced , in my opinion . The requirement that cogent reasons must be shown for any departure from it sets a high standard which is not easily satisfied . The protection which the law provides to ensure that any departures are compatible with Convention rights is an additional safeguard . This has been amply demonstrated in practice since the LAW was promulgated . ORG is the only place where a hospital has departed from what the PERSON says about seclusion in favour of its own policy . While I would respectfully endorse everything that Lord PERSON says in the last paragraph of his speech [ paragraph CARDINAL , quoted below ] , I believe that it would be wrong to see this judgment as opening the door to substantial departures from the Code on the part of individual hospitals . The decision of the majority should not be seen as an invitation to other hospitals to do this and resort to their own policies . The status of the Code remains unchanged , and so does the need to show cogent reasons if in any respect it is departed from .

Lord PERSON , in agreeing that LOC ’s policy was in accordance with the law for the purposes of DATE , emphasised the duty the hospital owed to protect patients and staff from harm . Once it was accepted that LOC had no statutory obligation to have a seclusion policy that conformed in every respect to the LAW and that LOC ’s seclusion policy was rational and reasonable in itself despite its divergences from the Code , there could be no room for any suggestion that the implementation of LOC ’s seclusion policy for the safety of other inmates was otherwise than in accordance with the law .

Lord PERSON concurred in respect of Articles CARDINAL and CARDINAL and dissented in respect of Article CARDINAL . He did not find that the hospital ’s policy was “ in accordance with law ” for the purposes of LAW , since it did not have sufficient “ quality of law ” . In his view , for the requirements of LAW to be met , LAW had to be given the higher status of the force of law , disentitling individual hospitals to depart from it on policy grounds . He concluded :

“ CARDINAL . Not without some considerable hesitation I have reached the conclusion that the Code must indeed be given this higher status . Without such a Code the legal position would be this . The only authority for seclusion would be , in the case of patients detained under LAW , the implied power of control over those lawfully detained ; in the case of informal patients , the common law doctrines of necessity and self - defence . The actual use of seclusion in individual cases would not be regulated save insofar as each hospital practising it would be required to adopt , publish and practise a rational policy of its own . That , of course , is precisely what LOC does . But by the same token that LOC is permitted to adopt its own policy , so too may other hospitals . Much of the factual focus of the appeal was upon those of LOC ’s patients who are detained for DATE . But LOC ’s policy departs from the PERSON much earlier than this : only for TIME does LOC conduct medical reviews at CARDINAL TIME intervals as specified by the Code ; from then until DATE such reviews occur twice ( rather than CARDINAL times ) DATE . Other hospitals too may think it unnecessary to conduct reviews as frequently as provided for by the Code . And of course there is nothing to stop LOC altering its policy whenever it thinks it right to do so . The policy of an individual hospital can be changed with infinitely greater ease than the LAW itself .

CARDINAL.The Secretary of ORG ’s Foreword to the DATE issue of the PERSON stated that : ‘ the LAW should be followed’ until necessary new legislation came into force . It ended :

‘ The LAW provides essential reference guidance for those who apply the LAW . Patients and their carers are entitled to expect professionals to use it.’

Under the ruling proposed by the majority of your Lordships , patients and their carers must be reconciled instead to substantial departures from the LAW on the part of individual hospitals who may prefer to follow a different policy of their own . It is my reluctant conclusion that not only will these patients and carers be disappointed in their expectations but that the practices in the event adopted by any such hospital ( rational though I acknowledge they must certainly be ) will not have the necessary legal quality to render them compatible with the rule of law . Unless it is to the LAW that one can look for regulation carrying the force of law it is not in my opinion to be found elsewhere . Hospital policies themselves provide too insubstantial a foundation for a practice so potentially harmful and open to abuse as the seclusion of vulnerable mental patients . ”

Lord PERSON dissented on all CARDINAL points . On Articles CARDINAL and CARDINAL he approved the reasoning of ORG . On the status of LAW , by section CARDINAL(CARDINAL ) of LAW DATE ( which directs the Secretary of ORG to prepare such a code ) he found :

“ ... in section CARDINAL(CARDINAL ) ORG had authorised a LAW with some minimum safeguards and a modicum of centralised protection for vulnerable patients . This is inconsistent with a free - for - all in which hospitals are at liberty to depart from the published LAW as they consider right . Indeed , it seems unlikely that ORG would have authorised a regime in which hospitals may as a matter of policy depart from the LAW . After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner , depending on the policy adopted by the managers and clinicians in particular hospitals . ”

He also found LAW to be applicable , stating as follows :

“ Under LANGUAGE law a convicted prisoner , sentenced to imprisonment , retains all his civil rights which are not taken away expressly or by necessary implication : PERSON v Honey [ DATE ] ORG , at CARDINAL G , per Lord PERSON . To that extent the prisoner has a residual liberty . The concept of residual liberty is a logical and useful one as demonstrated by the decision of ORG in PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL . The reasoning in PERSON shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘ prison within a prison’ : it is capable of constituting a material deprivation of residual liberty

It would also be wrong to assume that under the jurisprudence of the ORG residual liberty is not protected . There is relevant NORP authority not placed before ORG . In GPE , App No . CARDINAL/CARDINAL , ORG , albeit in an admissibility decision , considered the point . The complaint was a comparatively weak CARDINAL : the prisoner had been confined to her cell , unlawfully it was said , for TIME . The evidence was that she was a heroin addict who objected to that restriction on her residual liberty . In NORP terms the case simply did not reach the necessary threshold of severity . ORG dealt with the legal principles arising under the ORG as follows :

‘ It is undisputed in the present case that PERSON was lawfully detained in GPE prison pursuant to a court order remanding her in custody pending sentence for a criminal offence . Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison . The principal issue is whether the decision of the prison officers to leave PERSON in her cell until lunchtime - a period of TIME - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison .

The court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances . Generally however , disciplinary steps , imposed formally or informally , which have effects on conditions of detention within a prison , can not be considered as constituting deprivation of liberty . Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of LAW ( see Application no . CARDINAL/CARDINAL , dec . CARDINAL.CARDINAL.CARDINAL , PERSON , p CARDINAL . In appropriate cases , issues may arise however under articles CARDINAL and CARDINAL of the ORG

( My emphasis )

Plainly , the ECtHR has not ruled out as a matter of principle the concept of residual liberty . On the contrary , it accepts that there is scope for such a doctrine . It will be noted also that the ECtHR observed that in such cases ‘ in appropriate cases , issues may arise however under articles CARDINAL and CARDINAL of the Convention’ . To that it must be added that , if substantial and unjust seclusion of a mentally disordered patient can not in our domestic law be protected effectively under articles CARDINAL and DATE , the case for protection under article CARDINAL becomes ever stronger . It follows that a substantial period of unnecessary seclusion of a mentally disordered patient , involving total deprivation of any residual liberty that the patient may have within the hospital , is capable of amounting to an unjustified deprivation of liberty . ”

NORP The relevant domestic law and practice are set out in the speech of Lord PERSON in the ORG of Lords’ judgment in the present case ( paragraphs CARDINAL - CARDINAL ) and may be summarised as follows .

Section CARDINAL ( CARDINAL ) of LAW DATE provides :

“ CARDINAL ) NORP The Secretary of ORG shall prepare , and from time to time revise , a code of practice—

( a ) for the guidance of registered medical practitioners , managers and staff of hospitals and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under LAW and to guardianship and after - care under supervision under LAW ; and

( b ) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder . ”

Before preparing or altering LAW the Secretary of ORG is required to consult such bodies as appear to him to be concerned ( subsection ( CARDINAL ) of the same section ) . The LAW and any revised LAW must be laid before ORG , and either ORG may within a specified period require its alteration or withdrawal ( subsections ( CARDINAL ) and ( CARDINAL ) ) . The LAW must be published ( subsection ( CARDINAL ) ) .

By section CARDINAL(CARDINAL ) of the DATE Act the Secretary of ORG is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the LAW so far as they relate to the detention of patients under LAW , and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the LAW and to investigate complaints made by persons who are or have been detained under LAW . By section DATE ) the Secretary of ORG must direct that these functions shall be performed by ORG , an authoritative professional body established under LAW of ORG DATE and continued by section DATE ) of LAW .

The Code of Practice was promulgated in DATE . LAW , entitled “ Patients presenting particular management problems ” , addresses seclusion . Paragraph CARDINAL.CARDINAL defines seclusion as follows :

“ ORG is the supervised confinement of a patient in a room , which may be locked to protect others from significant harm . Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others .

ORG should be used ;

• as a last resort

• for the shortest possible time

ORG should not be used ;

• as a punishment or threat

• as part of a treatment programme

• because of shortage of staff

• where there is any risk of suicide or self- harm . ”

Paragraph CARDINAL provides :

“ Hospitals should have clear written guidelines on the use of seclusion which :

• ensure the safety and well being of the patient ;

• ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place ;

• distinguish between seclusion and ‘ time - out’ ( see paras CARDINAL - CARDINAL.CARDINAL ) ;

• specify a suitable environment taking account of patient ’s dignity and physical well being ;

• set out the roles and responsibilities of staff ;

• set requirements for recording , monitoring , reviewing the use of seclusion and any follow - up action . ”

The procedure for seclusion is set out at paragraphs CARDINAL - CARDINAL.CARDINAL :

“ CARDINAL The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge . Where the decision is taken by someone other than a doctor , the ORG or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period ( TIME ) .

CARDINAL A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient ’s seclusion , and present at all times with a patient who has been sedated .

CARDINAL The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated . The level should be decided on an individual basis and the patient should be observed continuously . A documented report must be made TIME .

CARDINAL The need to continue seclusion should be reviewed

• TIME by CARDINAL nurses ( CARDINAL of whom was not involved in the decision to seclude ) , and

• TIME by a doctor .

A multidisciplinary review should be completed by a consultant or other senior doctor , nurses and other professionals , who were not involved in the incident which led to the seclusion if the seclusion continues for more than :

• TIME consecutively ; or

• TIME intermittently over a period of TIME .

If the need for seclusion is disputed by any member of the multidisciplinary team , the matter should be referred to a senior manager . ”

NORP The policy of ORG applicable to the applicant is as follows . The introduction to the policy states at paragraph CARDINAL :

“ The Code of ORG provides guidance on how registered mental health practitioners , managers and staff of hospitals should proceed when undertaking duties under LAW . LAW revised in DATE was written to encompass a wide range of mental health services and does not specifically consider the special situation of a high security hospital . ”

NORP The policy repeats verbatim the definition of seclusion in the Code of Practice and the Code ’s statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient ’s treatment . Paragraph CARDINAL of the policy addresses the decision to seclude and provides :

“ CARDINAL The decision to use seclusion will be made usually in the first instance by the nurse in charge of the ward . It must be clear which individual made the decision . The ORG or deputy and the ORG Manager or deputy should be informed immediately .

CARDINAL The doctor and Ward Manager or deputy will attend the ward as soon as possible within TIME to assess the situation and review with the nurse in charge whether or not seclusion is required to continue and assess alternative responses . The doctor will record in the notes any agreed level of observation or intervention in excess of the standard seclusion observation . ”

A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times , and a paper recording of direct visual observation of the patient is to be made at least TIME ( paragraph CARDINAL ) . Paragraph CARDINAL provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time .

The review of seclusion and possible challenges to it are set out in paragraphs CARDINAL of the policy which provide as follows :

“ ORG

CARDINAL The ORG [ Resident Medical Officer ] is responsible for the use of seclusion . Regular reviews must take place involving the ORG or deputy and ORG Manager or deputy . The details of these are given below .

CARDINAL If a doctor was not present at the time of seclusion , he must initiate a review on arrival within TIME and then at :

CARDINAL.CARDINAL.CARDINAL DATE - medical review at CARDINAL , DATE , TIME ;

DATE CARDINAL - twice per day ;

DATE onwards:-

[ CARDINAL ] DATE review by ORG Manager or Site Manager from different ward ;

[ ii ] CARDINAL medical reviews DATE [ CARDINAL being by the ORG ] ;

[ iii ] DATE review by multi - disciplinary patient care team to include ORG ;

[ iv ] review by ORG as per paragraph CARDINAL below ;

CARDINAL If at any review at TIME or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient ’s responsible medical officer or the duty consultant and this should be fully documented .

CARDINAL The senior manager / nurse will conduct a review on arrival on the ward within TIME of the decision to seclude and then in accordance with the agreed review schedule .

CARDINAL The nurse in charge will ensure that the patient ’s Consultant Psychiatrist , or their deputy is informed at the earliest opportunity . Others involved in the patient ’s care should also be informed .

CARDINAL qualified nursing staff will carry out a review of the seclusion TIME . They will record the outcome in the observation record and they will both sign the entry .

CARDINAL.CARDINAL Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude .

CARDINAL A Consultant Psychiatrist [ who will be the ORG if available or their designated deputy , e g out of TIME or during absence from hospital ] must see the patient within TIME or on DATE . If waiting until DATE causes a delay , the duty Registrar must discuss the patient ’s care with the duty Consultant or ORG and seek agreement to the delay .

CARDINAL If the patient remains in seclusion for TIME continuously or for TIME intermittently within a period of TIME , an independent review of the need to continue seclusion will take place for this purpose . This should involve , where practicable , CARDINAL or more clinicians who were not directly involved in the decision to seclude the patient as well as members of ORG . However , CARDINAL clinician taking part in the review must not have been involved in the decision to seclude the patient .

CARDINAL There is an appeal process available to all secluded patients , separate from and additional to the procedures set out within this paragraph . This process is set out at paragraph CARDINAL .

CARDINAL Monitoring arrangements

CARDINAL All seclusion used within the hospital is reviewed by a multi - disciplinary group known as ORG ( ORG ) .

CARDINAL The functions of the group are as follows :

• to monitor the implementation and adherence to the policy and procedure for the use of seclusion

• to monitor and review the use of seclusion throughout the hospital

• to monitor and review patients secluded under conditions of paragraph CARDINAL of the seclusion procedure

• to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion

• to review documentation for the collection of information about the use of seclusion and alternative management strategies

• to examine training and educational needs to support staff mechanisms and make recommendations to ORG

• to prepare and submit reports to Clinical Teams , Executive Directors , ORG

• to consider any other matters relating to seclusion that occur

• to share and disseminate good practice , hospital wide .

CARDINAL ORG is chaired by the Medical Director and reports to ORG .

CARDINAL The use of seclusion for patients posing management problems

CARDINAL Any patient for whom the clinical team has to institute seclusion in excess of DATE , will be individually brought to the attention of ORG or in their absence the Executive Nurse Director , by the chairperson of the patient ’s clinical team , with a resume of the reasons for the continuing use of seclusion , the care and treatment which the patient will be receiving and what is hoped will be achieved .

CARDINAL The Medical Director will inform the Chief Executive and request a formal case presentation to the next planned meeting of the SMG .

CARDINAL The Medical Director and Executive Nurse Director , or CARDINAL representatives of ORG acting on their behalf , must see the patient whether or not they are familiar with the case .

CARDINAL Following the case presentation at CARDINAL , monitoring arrangements will be agreed between the SMG and the patient ’s clinical team .

CARDINAL Each patient ’s case will be reviewed DATE by the clinical team and a written report sent DATE to ORG . At the initial review meeting , and with the patient ’s consent , consideration will be given by the team to notifying the patient ’s key relative(s ) .

CARDINAL After DATE , the Medical Director and Executive Nurse Director will participate in a clinical team review . The case will then be discussed at ORG .

CARDINAL ORG will be informed if seclusion continues beyond DATE and will receive progress reports on a regular basis . ”

The Government provided the following information on the nature of LOC hospital , and the practice of seclusion there , in the form of witness statements , which had been before the domestic courts in the present case . Those statements were prepared by various senior clinicians at the hospital , including the applicant ’s Responsible Medical Officer .

Ashworth is CARDINAL of CARDINAL hospitals in GPE providing high security accommodation for persons detained under LAW . It includes patients who can not be reached by treatment and whose persistent illness renders them predictably dangerous . The aim of seclusion at LOC is to contain severely disturbed behaviour which is likely to cause harm to others . The majority of those secluded go into and come out of seclusion within DATE . Those who are secluded for DATE are likely to be secluded for much longer periods . The common factor in such patients is a danger to others which is not liable to be resolved in the short term , and the decision to terminate seclusion is one to be made DATE or even DATE , because of the need to be satisfied of the enduring nature of changes to the patient . Even in such cases , reviews and other safeguards exist to ensure that the patient will not be secluded for longer than necessary , including the possibility of more frequent medical reviews , if necessary .

The approach of LOC is to allow secluded patients the most liberal regime that was compatible with their presentation . Most patients are secluded in their own rooms and , only if that is not possible , in modified bedrooms or , in the most serious cases , in special seclusion rooms . Staff are always within sight and sound . Meals can be taken in - room or , if the risk permits , on the ward . Secluded patients received regular and frequent visits . Periods are also spent “ in association ” outside the room , either with staff or other patients , and can last up to TIME . Walks in a secure garden and occupational therapy are also possible .

“ Count Me In ” is a national census of inpatients in mental health and learning disability services in GPE and GPE , which is carried out jointly by ORG , ORG and ORG . The DATE census found that PERCENT ( CARDINAL of CARDINAL patients surveyed ) had experienced CARDINAL or more episodes of seclusion in their period of admission ( or in DATE , whichever was shorter ) .

The Mental Health Act Commission is a statutory body under LAW DATE and has the task , inter alia , of reviewing the operation of the LAW and publishing a DATE report ( section CARDINAL ( CARDINAL ) ) . LAW of ORG Tenth Biennial Report ( DATE ) addressed the legality and practice of seclusion at length . It found that many hospitals failed to comply with LAW provisions on seclusion and recommended that it was now appropriate to provide a framework of statutory regulation of seclusion ( at CARDINAL and CARDINAL of the report ) . A similar recommendation was made in its FAC ( paragraphs CARDINAL et seq . ) .

ORG considered seclusion of mental health patients as part of its report entitled “ Deaths in Custody ” ( Session DATE , Third Report , DATE . ORG concluded ( at paragraphs CARDINAL and CARDINAL ) :

“ We remain concerned at the evidence we have received , including from the statutory body responsible for review of mental health services , attesting to the low level of compliance with guidelines on the use of seclusion and of physical force against vulnerable people who have been deprived of their liberty . This situation carries a serious risk of breach of rights under LAW .

[ W]e remain concerned at the under - enforcement of guidance in this highly human rights - sensitive area . We are not confident that Convention compliance can be effectively and comprehensively ensured without some statutory obligations in this area . This should include statutory obligations on all health authorities to keep comprehensive records of all violent incidents . ”

In its report on LAW DATE , during its passage as a PERSON , ORG returned to the issue of seclusion and recommended :

“ We urge the Government to ensure that , whatever method of regulation is adopted , sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary . ”

ORG ( a coalition of CARDINAL organisations working in the field of mental health ) also campaigned for an amendment to LAW DATE to provide statutory regulation of seclusion . It adopted the views of ORG and ORG set out above . The proposed amendment was not adopted .

On DATE , in resolution CARDINAL/CARDINAL , ORG of ORG adopted “ Principles for ORG with Mental Illness and for ORG ” . LAW is entitled “ Consent to treatment ” and at paragraph CARDINAL it provides :

“ Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others . It shall not be prolonged beyond the period which is strictly necessary for this purpose . All instances of physical restraint or involuntary seclusion , the reasons for them and their nature and extent shall be recorded in the patient ’s medical record . A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff . A personal representative , if any and if relevant , shall be given prompt notice of any physical restraint or involuntary seclusion of the patient . ”

Recommendation RecCARDINAL ( CARDINAL ) of ORG to member states concerning the protection of the human rights and dignity of persons with mental disorder , where relevant provides as follows :

“ LAW and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment

Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right :

i. to appeal against a decision ;

ii . to have the lawfulness of the measure , or its continuing application , reviewed by a court at reasonable intervals ;

iii . to be heard in person or through a personal advocate or representative at such reviews or appeals .

If the person , or that person ’s personal advocate or representative , if any , does not request such review , the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals .

DATE and restraint

ORG or restraint should only be used in appropriate facilities , and in compliance with the principle of least restriction , to prevent imminent harm to the person concerned or others , and in proportion to the risks entailed .

Such measures should only be used under medical supervision , and should be appropriately documented .

In addition :

i. the person subject to seclusion or restraint should be regularly monitored ;

ii . the reasons for , and duration of , such measures should be recorded in the person ’s medical records and in a register . ”

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) is required to draw up an DATE general report on its activities . The substantive sections of those reports are collected in ORG ) DATE : “ the CPT Standards ” . LAW of the ORG standards covers involuntary placement in psychiatric establishments and paragraph DATE provides :

“ Reference should also be made in this context to the seclusion ( i.e. confinement alone in a room ) of violent or otherwise " unmanageable " patients , a procedure which has a long history in psychiatry .

There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients , and the ORG is pleased to note that it is being phased out in many countries . For so long as seclusion remains in use , it should be the subject of a detailed policy spelling out , in particular : the types of cases in which it may be used ; the objectives sought ; its duration and the need for regular reviews ; the existence of appropriate human contact ; the need for staff to be especially attentive .

ORG should never be used as a punishment . ”

NORP In PERSON v The Queen ( DATE ) CARDINAL DLR ( CARDINALth ) CARDINAL ) , CARDINAL DATE , ORG considered whether a prisoner who had been placed within a “ Special Handling Unit ” at his normal place of detention could bring habeas corpus proceedings to challenge that placement . In finding that he could , the court stated that a prisoner was not without some rights or residual liberty and that there may be significant degrees of deprivation of liberty within a penal institution . In effect , a prisoner had the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution ( Le Dain J for the ORG at paragraph CARDINAL ) .


The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having committed armed robbery while acting in an organised criminal gang .

On DATE he was brought before ORG and charged with armed robbery , kidnapping and extortion . On DATE the ORG remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question while acting in an organised criminal gang . It held that there was a risk that the applicant might obstruct the proceedings or abscond . It further relied on the severity of the anticipated penalty .

Later , several other persons were detained and charged in connection with the same investigation conducted by ORG .

On DATE the ORG prolonged his detention until DATE .

On DATE ORG ordered that the applicant be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offences in question and the gravity of the charges . It also had regard to the number of suspects and the need to obtain further evidence .

On DATE ORG extended the applicant 's detention until DATE . It found that there was a reasonable risk that the applicant might go into hiding or obstruct the proceedings . It also relied on the severity of the anticipated penalty . Lastly , it noted that further prolongation of the investigation was not attributable to the prosecuting authorities , but resulted from the fact that further suspects had been identified and arrested . Furthermore , the prolongation was due to a delay in the preparation of some expert reports and the need to request legal assistance from the NORP authorities .

On DATE ORG prolonged the applicant 's detention until DATE . It found that there was a reasonable risk that the suspects might intimidate witnesses , given the nature of the charges against them . It further observed that the investigation could not be terminated on account of the prolonged preparation of an expert report and the need to hear a witness , PERSON , who was serving his prison sentence in GPE .

On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with , inter alia , armed robbery , kidnapping , extortion and inflicting bodily harm which had been committed while being a member of an armed organised criminal gang . The bill of indictment specified that the applicant was a recidivist offender . There were CARDINAL defendants in the case , all charged with numerous counts of armed robbery and extortion .

On DATE the ORG ordered that the applicant be held in custody until DATE . In addition to the grounds previously invoked , it relied on the complexity of the case and the number of defendants .

On DATE the trial court held the first hearing . It subsequently held CARDINAL hearings in the case .

On DATE ORG extended his detention on remand until DATE .

On DATE ORG prolonged the applicant 's pre - trial detention until DATE . It observed that the fact that the trial had not been terminated could not be attributed to the authorities , given the volume of evidence and the fact that some hearings had to be cancelled as the defendants ' counsel or witnesses had not appeared . It further considered that the applicant had been charged with the commission of the crimes for which he was liable to a sentence of imprisonment exceeding CARDINAL

On DATE ORG ordered that the applicant and his CARDINAL co - defendants be kept in custody until DATE . It relied on the fact that witnesses had informed the trial court about having been threatened by the defendants . It also had regard to the severity of the anticipated penalty and the presumption established by LAW . Furthermore , ORG considered that the prolongation of the detention beyond the statutory time - limit of DATE was justified by the complexity of the case and the volume of evidence to be heard . In that respect , it also observed that in DATE the trial court had been prevented from hearing evidence on account of the absence of CARDINAL defence counsel .

On DATE ORG prolonged the applicant 's detention until DATE . It noted that the trial was being efficiently conducted and that it had not been terminated for reasons which were attributable to the defendants and their counsel . It noted in particular that the defendants had attempted to intimidate witnesses and protract the trial . Further , it had regard to the nature of the charges and the severity of the likely penalty .

On DATE ORG convicted the applicant of armed robbery , kidnapping , extortion and inflicting bodily harm and sentenced him to DATE imprisonment and a fine .

Further decisions on the prolongation of the applicant 's detention were given by ORG on DATE ( ordering his continued detention until DATE ) and DATE ( extending that period until DATE ) .

On DATE the applicant was served with a copy of ORG judgment . He subsequently appealed against that judgment .

On DATE the ORG of Appeal prolonged the applicant 's detention until DATE . On DATE his detention was extended until DATE .

On DATE ORG held a hearing .

On DATE ORG quashed the first - instance judgment in respect of the applicant and remitted the case for retrial .

On DATE ORG ordered that the applicant and his CARDINAL co - defendants be held in custody until DATE . Having regard to LAW , it observed that the applicant might attempt to obstruct the proceedings given the likelihood of a severe penalty being imposed on him . It also relied on the nature of the charges .

On DATE the ORG held the first retrial hearing . It subsequently held CARDINAL hearings .

On DATE ORG prolonged his detention until DATE . It noted that continuation of that measure was necessary in order to secure the proper conduct of the proceedings , given the severity of the anticipated penalty .

On DATE the ORG ordered that the applicant and CARDINAL of his co - defendants be kept in custody until DATE . It found that the applicant 's continued detention was necessary in order to prevent the applicant from interfering with witnesses . On DATE ORG dismissed the applicant 's appeal against that prolongation . Referring to LAW , it observed that the applicant ' crimes , and thus his continued detention was justified on public interest grounds .

On DATE ORG prolonged the applicant 's detention until DATE . It held that following ORG instructions most of the witnesses who had given evidence at the original trial had to be heard again . In that case there was a reasonable risk that the defendants might interfere with witnesses . In addition , the court held that given the gravity of the charges and the likelihood that severe penalties would be imposed on them , the defendants might obstruct the proceedings by going into hiding . On DATE the ORG upheld that decision . It considered , inter alia , that ORG had attempted to examine the case within a reasonable time , but there had been significant delays in the trial which were attributable to the defendants or their counsel . In this respect , it pointed out to the obstructive conduct of all the defendants on DATE which had prevented ORG from holding a hearing on DATE . On the other hand , ORG instructed ORG to assess the length of detention of each defendant separately . It pointed out that the further prolongation of the detention of those defendants who were not simultaneously serving prison sentences could not be accepted in the long term .

Subsequently , ORG prolonged the applicant 's detention on DATE ( until DATE ) and DATE ( until DATE ) . It invoked the same grounds as in its previous decisions . The applicant appealed against the latter decision .

On DATE ORG altered ORG decision and ordered that the applicant be released . It underlined that the applicant 's detention on remand had been exceptionally long and thus lost its provisional nature . Having regard to the current progress of the trial , the court observed that it was not possible to predict when the proceedings would be terminated . Furthermore , it noted that CARDINAL out of CARDINAL co - defendants were serving long - term prison sentences .

Prior to his release , the applicant filed numerous but unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . He maintained that the length of his detention was excessive .

It appears that the criminal proceedings against the applicant are still pending .

DATE to DATE the applicant served a prison sentence imposed on him in a separate set of proceedings .

The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of GPE v. GPE [ ORG ] , no . GPE , § § DATE , ECHR CARDINAL-XI ; PERSON v. GPE , no . CARDINAL , § § DATE , DATE ; and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .