Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national . She was born in DATE and lives in GPE . She works as a clerk .

On DATE the public prosecutor ’s office in GPE ( GPE ) sent letters rogatory to ORG requesting it to carry out a search at the applicant ’s office . She was suspected of offences connected with the illegal sale of milk for zootechnical use .

The NORP judicial authority decided to start its own investigations and the task of making the inquiries was assigned to an investigating judge ( Commissario della PERSON ) , PERSON On DATE the applicant was questioned and arrested .

On DATE ORG appointed PERSON as the public prosecutor ( public prosecutor ’s office ) . As she was unable to perform her duties owing to a conflict of interest she was replaced on DATE by PERSON The applicant maintained that the public prosecutor should have been appointed by ORG and not by ORG .

On DATE the investigating judge preferred final charges . After the witnesses had given evidence and the defence lawyers lodged their memorials , the case file was sent to PERSON , a first - instance judge . Public hearings at which witnesses gave evidence before the investigating judge were held on DATE , DATE and DATE and CARDINAL and CARDINAL DATE .

On DATE the first - instance judge delivered his verdict without holding a public hearing and in the accused ’s absence . He sentenced her to DATE and CARDINAL months’ imprisonment . He also ruled that she was dangerous and imposed a court supervision order as a security measure .

NORP The applicant appealed and lodged her grounds of appeal on CARDINAL DATE . The preparatory stage of the appeal was conducted by the same investigating judge , PERSON , who had led the investigation at first instance .

On DATE the applicant lodged a complaint alleging a violation of fundamental principles of domestic law and of ORG . On DATE she lodged a memorial .

On DATE Mr N. , a criminal appeal court judge ( Giudice delle Appellazioni penali ) , delivered the final judgment of the court of appeal , which was made public on DATE . In his decision , he rejected the allegation of a violation of fundamental principles on the ground that the legislation in issue had been amended in DATE and it was for the legislature to decide whether or not the reform applied to pending proceedings or , as it in fact decided , only to new proceedings . The judge upheld the conviction on the merits but reduced the sentence to CARDINAL GPE imprisonment . He also quashed the declaration that the applicant was dangerous and the security measure .

Since PERSON no . CARDINAL of DATE on the reorganisation of the judicial bodies came into force , criminal proceedings have been governed by new rules . However , the DATE statute makes no change to the former rules governing the holding of hearings .


Violation of Art. 3;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP citizen , born in DATE .

In DATE he and his brother were placed on the local child protection register because of “ known physical abuse ” . The cohabitant of the PERSON mother was given a police caution after he admitted hitting PERSON with a cane . Both boys were removed from the child protection register in DATE . The cohabitant subsequently married the applicant ’s mother and became his stepfather .

NORP In DATE , the head teacher at ORG school reported to the local ORG that A. ’s brother had disclosed that PERSON was being hit with a stick by his stepfather . The stepfather was arrested on CARDINAL DATE and released on bail DATE .

On DATE the applicant was examined by a consultant paediatrician , who found the following marks on his body , inter alia : ( CARDINAL ) a fresh red linear bruise on the back of the right thigh , consistent with a blow from a garden cane , probably within DATE TIME ; ( CARDINAL ) a double linear bruise on the back of the left calf , consistent with CARDINAL separate blows given some time before the first injury ; ( CARDINAL ) CARDINAL lines on the back of the left thigh , probably caused by CARDINAL blows inflicted DATE previously ; ( CARDINAL ) CARDINAL linear bruises on the right bottom , consistent with CARDINAL blows , possibly given at different times and DATE ; ( CARDINAL ) a fading linear bruise , probably DATE .

The paediatrician considered that the bruising was consistent with the use of a garden cane applied with considerable force on CARDINAL occasion .

The stepfather was charged with assault occasioning actual bodily harm and tried in DATE . It was not disputed by the defence that the stepfather had caned the boy on a number of occasions , but it was argued that this had been necessary and reasonable since PERSON was a difficult boy who did not respond to parental or school discipline .

In summing up , the judge advised the jury on the law as follows :

“ ... What is it the prosecution must prove ? If a man deliberately and unjustifiably hits another and causes some bodily injury , bruising or swelling will do , he is guilty of actual bodily harm . What does ‘ unjustifiably’ mean in the context of this case ? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent , in this case the stepfather , provided that the correction be moderate in the manner , the instrument and the quantity of it . Or , put another way , reasonable . It is not for the defendant to prove it was lawful correction . It is for the prosecution to prove it was not .

This case is not about whether you should punish a very difficult boy . It is about whether what was done here was reasonable or not and you must judge that ... ”

The jury found by a majority verdict that the applicant ’s stepfather was not guilty of assault occasioning actual bodily harm .

NORP The applicant ’s stepfather was charged with “ assault occasioning actual bodily harm ” contrary to section CARDINAL of the Offences against LAW , as amended . An “ assault ” , for the purposes of this section , includes an act by which a person intentionally or recklessly inflicts personal violence upon another . “ Actual bodily harm ” includes any hurt or injury calculated to interfere with the health or comfort of the victim ; the hurt or injury need not be permanent but must be more than transitory or trifling . The maximum penalty on conviction is DATE imprisonment .

In addition , it is an offence under LAW CARDINAL to assault or ill - treat a child in a manner likely to cause him unnecessary suffering or injury to health . The maximum penalty on conviction is CARDINAL years’ imprisonment .

NORP In criminal proceedings for the assault of a child , the burden of proof is on the prosecution to satisfy the jury , beyond a reasonable doubt , inter alia that the assault did not constitute lawful punishment .

Parents or other persons in loco parentis are protected by the law if they administer punishment which is moderate and reasonable in the circumstances . The concept of “ reasonableness ” permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children .

Physical assault is actionable as a form of trespass to the person , giving the aggrieved party the right to recovery of damages . In civil proceedings for assault , whilst the elements of the tort are the same as those of the criminal offence , the burden of proof of establishing that punishment was reasonable is on the defendant , on the balance of probabilities .


No violation of Art. 5-1-e;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was convicted of causing grievous bodily harm with intent . She was found to be suffering from a mental illness . She was detained in hospital pursuant to sections CARDINAL and CARDINAL of LAW DATE ( “ the DATE LAW ) . She applied to ORG ( “ MHRT ” ) for her discharge from detention in hospital .

On DATE the MHRT first considered her application . It adjourned in order , inter alia , to obtain a psychiatric report from a Dr PERSON which was to address the eligibility of the applicant for a conditional discharge from hospital .

On DATE the ORG resumed its hearing of the applicant 's application . It had before it the report of PERSON , which expressed the view that the applicant was not ready for discharge . Furthermore , the psychiatrist in charge of the applicant 's care , PERSON , and a social worker gave evidence to the ORG stating that they were opposed to the applicant 's discharge . They proposed that the applicant should instead be transferred to hostel - type accommodation , under the care of a supervising consultant psychiatrist .

The ORG nevertheless concluded that the applicant should be conditionally discharged . The conditions were that the applicant should reside at the home of her parents , that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist , and that she should comply with such treatment as might be prescribed for her .

NORP In coming to its decision , the MHRT answered the CARDINAL questions below as follows :

The ORG expressed the following as a part of its reasoning :

“ The ORG is satisfied ... that the patient is now suffering from mental illness , namely schizophrenia , the symptoms of which are being fully controlled by medication and that she needs ongoing treatment and medication in order to control her illness .

The patient ... has been symptom - free for DATE .

... in view of the possibility of a relapse , she should remain liable to be recalled to hospital for further treatment . ”

The ORG deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed .

On DATE the psychiatrist responsible for supervising the applicant in the community , PERSON , saw her with CARDINAL members of his team . He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation . He described his consultation with the applicant in a letter to PERSON , dated DATE , in which he wrote , inter alia :

“ I made it clear that I would not consider it safe to supervise [ the applicant ] if she were to go straight home to the care of her parents , as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there . ”

Dr PERSON made clear that he was in no doubt that the next stage in the applicant 's treatment , rehabilitation and risk management should take place near her family , but in a medium - security unit or at a registered mental nursing home . Alternatively , he suggested asking CARDINAL of his colleagues , or CARDINAL of the general psychiatrists at ORG , whether they would be willing to supervise the applicant on conditional discharge to her parents ' home .

On DATE Dr PERSON wrote to the MHRT . He stated that the purpose of his letter was to give the ORG advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant . He explained that both PERSON and PERSON PERSON were agreed that it would be difficult to manage her should she be discharged directly to her parents ' home . He continued :

“ In the circumstances , I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [ that she ] should go through a further period of rehabilitation in the community to prepare her fully for community living . ”

On DATE Dr PERSON again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in ORG ( “ the NLFS ” ) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal . As it transpired , none of those psychiatrists was prepared to do so .

On DATE the health authority responsible for the area in which the applicant lived ( “ the health authority ” ) requested the director of the ORG to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision .

On DATE the ORG informed the health authority that the applicant 's new responsible medical officer , PERSON , was not satisfied that the applicant should return home . However , he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after - care supervision for the applicant were she to be discharged to her parents ' home .

On DATE the ORG wrote to the health authority to confirm that no consultant forensic psychiatrist from the ORG was willing to supervise the applicant in the community . Furthermore , it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community . The letter noted that most private independent sector providers concentrated on acute and in - patient care only .

On DATE Dr PERSON wrote to the MHRT to advise it that its conditions had not been complied with so far , and the reasons therefor .

In DATE and DATE the health authority wrote to the clinical directors of the forensic psychiatry services in GPE , GPE and GPE , identifying CARDINAL units in addition to the NLFS . They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the ORG . None was willing or able to assist .

The health authority subsequently wrote to both national and private institutions in GPE and GPE with the same request . Once again , no one was prepared to comply with the conditions set by the MHRT .

NORP The health authority concluded that there were no further steps that it could take .

On DATE Dr PERSON wrote to ORG , advising it of his opinion that the conditions imposed by the ORG were impossible to meet . He therefore requested the ORG Secretary to consider exercising his powers under section CARDINAL(CARDINAL ) of the DATE Act to refer the applicant to an ORG . The Home Secretary complied with that request on DATE .

On DATE the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the ORG , which was preventing her discharge from hospital . She sought , inter alia , the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the ORG .

On DATE ORG granted the applicant permission to apply for judicial review . The Secretary of ORG declined to intervene in the proceedings , but made the following observations :

“ LAW provides an established legislative framework in this and similar cases designed to safeguard the interests of patients . As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted ORG ... It is a matter for the ORG whether they decide to order a conditional discharge against the advice of the [ Responsible Medical Officer ] . ”

On DATE the High Court judge ( Mr Justice PERSON ) heard the applicant 's substantive application for judicial review . The applicant argued that she was entitled to be discharged from hospital ; that the health authority was in breach of its duty under section CARDINAL of the DATE Act for failing to provide her with the necessary services to comply with the conditions of the ORG ; and that the failure to comply with those conditions within a reasonable period of time was in breach of LAW .

The judge rejected the applicant 's application . He held that , under section CARDINAL of the CARDINAL Act , the health authority was not under an absolute duty to implement the conditions of the ORG , but only a duty to take all reasonable steps to attempt to satisfy those conditions . The judge further held that , on the facts , the health authority had complied with that duty . He further rejected the applicant 's suggestion that any of the psychiatric consultants had “ thwarted ” the conclusions of the ORG , holding that doctors were both entitled and obliged to exercise their own professional judgment .

On DATE , following the reference by the Home Secretary on DATE ( see paragraph CARDINAL above ) , a differently constituted MHRT considered the applicant 's case afresh . It concluded that the applicant should be conditionally discharged . The conditions were that the applicant should reside in accommodation approved by her responsible medical officer , that she accept to be supervised and take the medication prescribed by the latter , and that she accept to be supervised by her social supervisor .

The ORG gave the same answers as the first MHRT to the questions set out in paragraph CARDINAL above . It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed . It further expressed the following as part of its reasoning :

“ ... we consider that it is appropriate that [ the applicant ] should remain liable to recall to hospital . The critical issue , we feel , is that Miss PERSON 's current good mental health is dependent , in our view , upon her continuing to receive her medication .

Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period . We consider that , bearing in mind that Miss PERSON had a legitimate expectation DATE of being released into the community almost at once , her [ Responsible Medical Officer ] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent . Having seen Miss PERSON , it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her . ”

On DATE the applicant was conditionally discharged from hospital to a resettlement project hostel in GPE .

Subsequently , ORG granted the applicant permission to appeal against the judgment of ORG of DATE in her judicial review proceedings . It recognised that , in the light of the applicant 's conditional discharge , which had occurred subsequent to the judgment of ORG , the issues raised on appeal were , in CARDINAL sense , academic . However , permission to appeal was granted as a result of the importance of the issues raised .

On DATE ORG dismissed the applicant 's appeal . It agreed with the interpretation of section CARDINAL of the DATE Act that had been the basis of the decision of ORG judge ( see paragraph CARDINAL above ) .

In paragraph CARDINAL of his judgment , Lord PERSON set out the effect of an earlier judgment of ORG in NORP v. ORG , ex parte Secretary of ORG for ORG [ DATE ] CARDINAL ORG CARDINAL ( “ NORP ” ) as follows :

“ Should , for any reason , it prove impossible to implement the conditions specified by a ORG , that ORG could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions . In such circumstances the patient would remain detained unless and until a fresh reference was made to a ORG . The patient was not entitled himself to initiate a reference for DATE . The Secretary of ORG was under no similar restriction , but in practice a considerable length of time would be likely to DATE before the matter came back before the ORG pursuant to a reference by the Secretary of ORG . The implications of this state of affairs were considered by ORG in PERSON v. the GPE ... ”

At the time at which the facts in the present case arose , no separate relief was available to the applicant under LAW DATE ( which incorporated the Convention directly into domestic law ) . Nevertheless , Lord PERSON proceeded on the basis that , where there was no conflict with precedent , the correct approach had always been to interpret legislation in a manner that was consistent with the Convention . He therefore addressed the human rights issues in the case as follows :

“ CARDINAL . Does the legislative scheme , as interpreted in [ ORG ] , violate the right to liberty conferred by LAW ] ? In considering this question it is necessary to distinguish between CARDINAL different situations . The first is a case , such as the present , where the ORG concludes that the patient is mentally ill and requires treatment , but that under appropriate conditions such treatment can be provided in the community . The second is where , as in the case of PERSON , the ORG finds that the patient is no longer suffering from mental illness , is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved , to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur .

Where ( i ) a patient is suffering from mental illness and ( ii ) treatment of that illness is necessary in the interests of the patient 's own health or for the protection of others and ( iii ) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community , it seems to me that the CARDINAL criteria identified by ORG in PERSON are made out . Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community . Neither Article CARDINAL nor GPE jurisprudence lays down any criteria as to the extent to which member GPE must provide facilities for the care of those of unsound mind in the community , thereby avoiding the necessity for them to be detained for treatment in hospital .

If a health authority is unable , despite the exercise of all reasonable endeavours , to procure for a patient the level of care and treatment in the community that a ORG considers to be a prerequisite to the discharge of the patient from hospital , I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by LAW .

Very different considerations apply to a factual situation such as that considered by ORG in GPE . Where a patient has been cured of mental illness , he is no longer of unsound mind and the exception to the right to liberty provided for by LAW ) does not apply . In ORG has recognised that , in such circumstances , it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer , to some extent , the discharge to which the patient is entitled . The deferral must , however , be proportionate to its object and can not become indefinite . The decision in PERSON suggests that the statutory regime as interpreted in [ ORG ] , may not be consistent with LAW . If the ORG imposes a condition which proves impossible of performance , too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral .

The solution to the problem is not to interpret section CARDINAL in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals . I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem . I would simply observe that the solution may well involve reconsidering the decision of ORG in [ ORG ] . ... ”

During the course of his judgment , Lord Justice PERSON opined as follows :

“ DATE . The effect of LAW of LAW ] is to entitle a person in the situation of [ the applicant ] to have the lawfulness of her detention decided by a body , within the system of the ORG that is detaining her , that has appropriate court - like characteristics . In the case of GPE , that court - like function is performed by ORG ( ORG ) . CARDINAL necessary characteristic of such a body , if it is to meet the requirements of LAW , is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful : see ... PERSON v. the ORG Kingdom[judgment of CARDINAL DATE , Series A no . CARDINAL ] ...

NORP In the present case , the ORG concluded that the detention of [ the applicant ] would be unlawful once the conditions upon which her release was contingent were put in place . Those conditions , in particular , included cooperation by [ the applicant ] with supervision by a forensic consultant psychiatrist ; and therefore , by necessary implication , provision of such supervision by the appropriate organ of the ORG . If that order were to be effective , as LAW requires , such supervision had to be provided .

Johnson ... , CARDINAL and DATE , seems to me to make clear , in accordance with that requirement of effectiveness , that a breach of LAW is committed by the ORG if , once the ORG has determined that a patient should be released , it imposes conditions to facilitate that release that in the event are not fulfilled , at least if the non - fulfilment can be attributed to another organ of the ORG .

In applying that part of the ORG 's jurisprudence , I would not make the distinction drawn by [ Lord PERSON ] , in paragraph CARDINAL of his judgment , and based on the approach of ORG in PERSON , between cases where the PERSON concludes that the patient is mentally ill , but can be treated in the community , and cases ( such as PERSON itself ) where the ORG finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment . In the latter case , the justification for the placing of continued restrictions on the subject relates , and can only relate , to the history of mental illness and , as in PERSON , to the prospect of recurrence . In both cases , there is continued detention ; the role of the ORG in both cases is to exercise the court - like functions required by LAW , and under the jurisprudence of LAW the national authorities are equally bound to respect and act on the determination of the ORG in either case .

There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is ' of a kind or degree warranting compulsory confinement ' to decisions that were not taken with that formulation expressly in mind . In [ the applicant 's ] case , the ORG answered ' Yes ' to the question : ' Is the ORG satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment ? ' , but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment . That is not a clear - cut decision of the type that PERSON seems to assume .

However that may be , under the [ Convention ] jurisprudence ... once the ORG made a decision as to [ the applicant 's ] release that was contingent on the provision of forensic psychiatric supervision , it became the responsibility of the ORG to provide that supervision . Otherwise , if nothing was done , the situation would arise that was identified in paragraph CARDINAL of the judgment in PERSON , of indefinite deferral of the release that had been ordered by the ORG . That deferral would arguably entail a breach of the [ Convention ] . The issue would depend on whether , once the ORG had determined that her condition could and should be treated in the community , she was , in terms of the analysis in PERSON , suffering from a mental disorder of a kind or degree warranting compulsory confinement . I have already indicated the difficulty of this question . We received no submissions upon it , the argument being concentrated in another direction , and I certainly do not decide the issue here .

In raising the possibility that [ the applicant 's ] detention became unlawful I have not overlooked [ Lord PERSON 's ] view , set out in paragraph CARDINAL of his judgment , that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved ; but what matters in [ Convention ] terms is the ruling of the ORG , the determining body created by LAW . If the ruling of the ORG is frustrated , in a case where under LAW ] jurisprudence the subject should no longer be detained , then the subject is deprived of LAW CARDINAL § CARDINAL protection , as ( I think it to be clear ) the [ ORG ] would have held in PERSON had the issue not been determined already under LAW : see paragraphs CARDINAL of the judgment .

I well accept that this conclusion entails a number of practical difficulties , not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the ORG thought necessary for that release . That may appear surprising , not only in common - sense terms , but also in view of the emphasis placed in the jurisprudence of the [ Convention ] upon the judgment of the national authorities : see for instance the observations of the [ Court ] in PERSON v. GPE [ judgment of DATE , Series A no . CARDINAL ] at paragraph CARDINAL as to the relevance in this context of the doctrine of the margin of appreciation ; and the observations in paragraph CARDINAL of the judgment in PERSON as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill . The problem in this case arises , however , from the rigidity of the required procedure of the MHRT that is identified in DATE and CARDINAL of [ Lord PERSON 's ] judgment . If the ORG indeed had the power to review its decisions in the light of practical circumstances , as was envisaged by PERSON in [ GPE ] , then difficulties of the present order would not arise ; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [ Convention ] . That , however , is not the present state of domestic law : the decision of the ORG being once and for all , that is the decision that LAW requires to be respected .

... [ the applicant ] may have a complaint under LAW to the whole circumstances that led to her continued detention : including , in particular , that the ORG having ruled that her continued detention was not justified , the implementation by the ORG of that order in the event caused her to continue to be detained . The ORG is responsible for the whole of these circumstances . That , presumably , is why the ORG was found to be in breach in PERSON from the original date of the ORG 's decision : see the last sentence of paragraph CARDINAL of the judgment . The circumstances of [ the applicant 's ] case might , therefore , by the same token found a successful complaint in GPE . ”

Lord Justice PERSON , during the course of his judgment , expressed the following view ( in DATE ) :

“ ... CARDINAL legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of LAW , at least to the extent that the decision of the ORG is explicitly dependent on the collaboration of the psychiatrist .

... I am rather less positive than ORG in looking to GPE to afford [ the applicant ] a remedy that can not be afforded here . It seems to me ... that the legislative scheme , while not always satisfactory in practice , is Convention - compliant in principle . ”

On DATE ORG refused the applicant 's petition of appeal against the judgment of ORG .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW ) defines “ mental disorder ” as “ mental illness , arrested or incomplete development of mind , psychopathic disorder and any other disorder or disability of mind ” .

Section CARDINAL of the DATE Act empowers a court to order a person , on being convicted of a criminal offence punishable with imprisonment , to be admitted to and detained in a specified hospital ( “ a hospital order ” ) .

The court can only make a hospital order if it is satisfied on the written or oral evidence of CARDINAL registered medical practitioners that the offender is suffering from mental disorder ( see paragraph CARDINAL above ) and that

“ the mental disorder ... is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and , in the case of psychopathic disorder or mental impairment , that such treatment is likely to alleviate or prevent a deterioration in his condition ” ( section CARDINAL(CARDINAL)(a)(i ) )

and

“ the court is of the opinion , having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender , and to the other available methods of dealing with him , that the most suitable method of disposing of the case is by means of a [ hospital order ] ” ( section CARDINAL(CARDINAL)(b ) .

Under section CARDINAL(CARDINAL ) , a hospital order must specify the form or forms of mental disorder from which the offender is suffering , as confirmed by the evidence of CARDINAL practitioners .

Under CARDINAL ) of LAW , where a hospital order is made by ORG , and it appears to the court , having regard to the nature of the offence , the antecedents of the offender and the risk of his committing further offences if set at large , that it is necessary for the protection of the public from serious harm to do so , the court may further order that the offender shall be subject to certain specified restrictions , detailed in section CARDINAL of the LAW . Such an order is called a “ restriction order ” and may be made either without limit of time or for the period specified in the order .

The purpose of an ORG is to deal with applications and references by and in respect of patients under the provisions of LAW ( section CARDINAL ) ) .

Under section CARDINAL of the CARDINAL Act , a person who is subject to a hospital order and a restriction order ( “ a restricted patient ” ) may apply to an ORG for a review of his or her detention in hospital :

( i ) initially after a period of DATE detention ;

( ii ) thereafter , DATE .

Under section CARDINAL(CARDINAL ) of LAW , the Secretary of ORG may at any time refer the case of a restricted patient to an ORG . This power is discretionary . The Secretary of ORG therefore can not be compelled by a patient to exercise it .

Under section CARDINAL ) and ( CARDINAL ) , read in conjunction with section CARDINAL(CARDINAL ) , of LAW ( as they were at the time when the facts giving rise to the applicant 's case occurred , the sections having subsequently been amended ) , where an application was made to an ORG by a restricted patient or where his case was referred to it by the Secretary of ORG , the ORG was required to direct the absolute discharge of the patient if it was satisfied :

( a ) ( i ) that the patient was not then suffering from mental illness , psychopathic disorder , severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in a hospital for medical treatment ; or

( ii ) that it was not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment ( section CARDINAL(CARDINAL ) of LAW ) ; and

( b ) that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment ( section CARDINAL(CARDINAL ) of LAW ) .

Pursuant to section CARDINAL(CARDINAL ) , upon an absolute discharge , the patient ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect .

Under section CARDINAL(CARDINAL ) of the DATE Act , where an ORG is satisfied as to either of the matters referred to in ( a ) , but not as to the matter referred to in ( b ) in paragraph QUANTITY above , it is required to direct the conditional discharge of the patient .

Lady Justice PERSON , giving judgment in NORP v. ORG , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL - CARDINAL , explained the nature of this power as follows :

“ LAW gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital . This would appear to be a provision designed both for the support of the patient in the community and the protection of the public , and it is an important discretionary power vested in an independent tribunal , one not lightly to be set aside in the absence of clear words . ”

By virtue of section CARDINAL(CARDINAL ) of LAW , a patient who has been conditionally discharged may be recalled by the Secretary of ORG . In addition , that patient must comply with the conditions attached to the discharge . In contrast to a patient who has been absolutely discharged , a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order .

Under section CARDINAL(CARDINAL ) of LAW , an ORG can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to its satisfaction .

As set out above , in the applicant 's domestic case in ORG ( NORP ( PERSON ) v. GPE and ORG [ DATE ] GPE and ORG ) CARDINAL ) , Lord PERSON considered the effect of ORG decision in GPE . He concluded that if it proved impossible to implement the conditions specified by an ORG , the patient would remain detained unless and until a fresh reference were made to an ORG . The original MHRT that imposed the conditions did not have any power to reconsider its decision .

A patient 's case can therefore only be reconsidered by a differently constituted ORG . In those circumstances the case must be considered afresh .

NORP The Secretary of ORG may also order a patient 's conditional or absolute discharge under LAW of LAW .

Section CARDINAL(CARDINAL ) of the DATE LAW as follows :

“ It shall be the duty of the health authority and of the local social services authority to provide , in cooperation with relevant voluntary agencies , after - care services for any person to whom this section applies ... ”

As set out above , ORG in the applicant 's domestic case ( cited above ) held that the duty imposed by section CARDINAL(CARDINAL ) was not absolute . It was a duty to take all reasonable steps to attempt to satisfy the conditions imposed by the ORG .

In NORP ( GPE ) v. Secretary of ORG for ORG and DATE ] GPE and ORG ) CARDINAL , decided on DATE , ORG considered the question of whether sections CARDINAL ) and/or CARDINAL ) of the DATE Act were incompatible with LAW ( e ) and/or CARDINAL of the LAW in that MHRTs lacked the power to guarantee that conditions they might attach to a deferred order for conditional discharge would be implemented within a reasonable period of time . The case , similarly to that of the applicant , involved a patient who was suffering from a mental illness , but CARDINAL which was in remission . It was decided subsequently to the applicant 's domestic case and was brought under LAW DATE . It therefore took into account the judgments in the applicant 's domestic proceedings , the PERSON and GPE jurisprudence .

In paragraph CARDINAL of his judgment , Lord PERSON confirmed that the decision of ORG in GPE made clear that an ORG was neither obliged nor entitled to reconsider its earlier decision in respect of a conditional discharge in order to accommodate any new facts that might cause it to alter that decision .

Lord PERSON continued , in paragraph CARDINAL :

“ ... the decision in [ ORG ] is in potential conflict with the requirements of ORG § CARDINAL . If , having made a decision that a patient is entitled to a conditional discharge , subject to specific conditions which necessitate deferral of the discharge , the ORG can not revisit its decision , the patient is liable to find himself ' in limbo ' should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions . That period ' in limbo ' may last too long to be compatible with LAW and may result in the patient being detained in violation of LAW . ”

Lord PERSON therefore determined that the decision in GPE needed to be reviewed in the light of the requirements of LAW . He concluded , in paragraph CARDINAL :

“ Tribunals should no longer proceed on the basis that they can not reconsider a decision to direct a conditional discharge on specified conditions where , after deferral and before directing discharge , there is a material change of circumstances . ... The original decision should be treated as a provisional decision , and the ORG should monitor progress towards implementing it so as to ensure that the patient is not left ' in limbo ' for an unreasonable length of time . ”

Lord PERSON then gave guidelines to MHRTs considering the discharge of a patient . The guidelines comprised specific steps that could be taken by an ORG should problems arise with making arrangements to meet the conditions of a conditional discharge . Those steps included the possibility of deferring for a further period , varying the proposed conditions to seek to overcome the difficulties , ordering a conditional discharge without specific conditions or deciding that the patient had to remain detained in hospital for treatment . ORG concluded ( in CARDINAL ) that such a scheme , proposed in the light of its review of the decision of ORG in GPE , would be compatible with LAW .

Following an appeal to ORG , on CARDINAL DATE , Lord PERSON , in his judgment with which the other members of ORG agreed , held :

“ CARDINAL . The key to a correct understanding of PERSON is to appreciate the nature of the case with which the ORG was dealing . It was that of a patient who , from DATE , was found not to be suffering from mental illness and whose condition did not warrant detention in hospital . The ORG 's reasoning is not applicable to any other case .

I do not accept that , because the tribunal lacked the power to secure compliance with its conditions , it lacked the coercive power which is CARDINAL of the essential attributes of a court . What LAW ( e ) and CARDINAL require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and , if not , to order his release . This power the tribunal had . Nothing in DATE suggests that discharge subject to conditions is impermissible in principle , and nothing in the Convention jurisprudence suggests that the power to discharge conditionally ( whether there are specific conditions or a mere liability to recall ) , properly used , should be viewed with disfavour . Indeed , the conditional discharge regime , properly used , is of great benefit to patients and the public , and conducive to the LAW object of restricting the curtailment of personal liberty to the maximum , because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness , are a risk to themselves or others and can not be effectively treated and supervised other than in hospital . If there is any possibility of treating and supervising a patient in the community , the imposition of conditions permit that possibility to be explored and , it may be , tried .

When , following the tribunal 's order of CARDINAL DATE , it proved impossible to secure compliance with the conditions within a matter of DATE , a violation of the appellant 's LAW right did occur . It occurred because the tribunal , having made its order , was precluded by the authority of the NORP case from reconsidering it . The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention . I would accordingly endorse ORG decision to set aside the ORG ruling and I would adopt the ruling it gave in paragraph CARDINAL of its judgment quoted above . Evidence before the ORG shows that that ruling is already yielding significant practical benefits . ...

There was no time DATE and DATE when the appellant was , in my opinion , unlawfully detained , and there was thus no breach of LAW ( e ) . There is a categorical difference , not a difference of degree , between this case and that of PERSON . PERSON was a patient in whose case the PERSON criteria were found not to be satisfied from DATE . While , therefore , it was reasonable to try and ease the patient 's reintegration into the community by the imposition of conditions , the alternative , if those conditions proved impossible to meet , was not continued detention but discharge , either absolutely or subject only to a condition of liability to recall . His detention became unlawful shortly after DATE because there were , as all the doctors agreed , no grounds for continuing to detain him . The present case is quite different . There was never a medical consensus , nor did the tribunal find , that the PERSON criteria were not satisfied . The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met , as it expected , but the alternative , if these conditions proved impossible to meet , was not discharge , either absolutely or subject only to a condition of recall , but continued detention . ...

The duty of the health authority , whether under section CARDINAL of the DATE Act or in response to the tribunal 's order of DATE , was to use its best endeavours to procure compliance with the conditions laid down by the tribunal . This it did . It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so . It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist . Thus the appellant can base no claim on the fact that the tribunal 's conditions were not met . ...

I do not consider that the violation of LAW which I have found calls for an award of compensation since ( a ) the violation has been publicly acknowledged and the appellant 's right thereby vindicated , ( b ) the law has been amended in a way which should prevent similar violations in future , and ( c ) the appellant has not been the victim of unlawful detention , which LAW is intended to avoid .

For these reasons ... I would dismiss this appeal . ”


Preliminary objection dismissed;Violation of Art. 6-1

András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

In the parliamentary elections of DATE , as a member of ORG ( ORG ) , he was elected MP for the GPE constituency to ORG of GPE ( “ the ORG ” ) .

Prior to his election he practised as a lawyer in GPE and , in the course of his professional activities , CARDINAL sets of criminal proceedings were brought against him , CARDINAL for insulting a lawyer and the other for insulting a public official .

As an MP he enjoyed parliamentary immunity .

On DATE the NORP public prosecutor applied to ORG to have the applicant 's parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer .

On DATE ORG transmitted the request to ORG .

On DATE ORG ( “ the ORG ” ) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official , by virtue of Article CARDINAL of the LAW ( on parliamentary immunity ) and LAW .

On DATE ORG transmitted the case file to ORG with a view to having the applicant 's parliamentary immunity lifted .

On DATE ORG of ORG referred the question to the Prime Minister .

The Prime Minister 's Office transmitted the case file to ORG joint committee ( “ the joint committee ” ) .

On DATE , after noting that the applicant had requested the lifting of his immunity , the joint committee decided , in view of the nature of the charges , to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office . It transmitted its decision to ORG ( “ the plenary Assembly ” ) .

When ORG met on DATE the joint committee 's report was read and appended to the TIME of the meeting .

On DATE the applicant challenged the joint committee 's decision . In his pleadings he made the point that parliamentary immunity had not been introduced to render Members of ORG unaccountable or immune from punishment , but to allow them to discharge their duties wholly independently and dispassionately . Unlike non - liability , he argued , immunity was by nature a relative and temporary privilege . However , the scope of the immunity , the procedure for lifting it and the shortcomings in its implementation had undermined due respect for ORG . The applicant added that it was unacceptable , in a society governed by the rule of law , that an institution originally meant to help MPs to discharge their duties should be transformed into a personal privilege .

On an unspecified date examination of the matter of the lifting of the applicant 's parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to the joint committee under Rules CARDINAL et seq . of LAW . ORG decided to stay the proceedings until the dissolution of the CARDINALnd ORG .

On DATE the applicant challenged that decision .

His file was then sent before ORG .

On DATE the ORG of the Speaker 's Office informed the applicant that the files concerning him had been placed on the agenda of ORG .

At the meeting of ORG on DATE the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed .

The applicant was re - elected as ORG party MP for the GPE constituency in the parliamentary elections of CARDINAL DATE .

On DATE the Speaker of ORG sent him a letter informing him of progress with the procedure for lifting his parliamentary immunity .

The relevant passages read as follows :

“ ( ... ) during DATE ORG [ DATE ] CARDINAL files concerning immunity were forwarded to the joint committee . In CARDINAL cases the committee decided to stay the proceedings until the next dissolution . In CARDINAL cases that decision was challenged . The files corresponding to those cases were placed on ORG agenda for examination . However , ORG did not examine them .

During the CARDINALnd ORG 's term CARDINAL files concerned your immunity . The first , file no . CARDINAL , concerned the proceedings brought against you by the ORG public prosecutor for insulting a lawyer ; the second , file no . CARDINAL , concerned the proceedings before ORG for insulting a public official . In both cases the joint committee decided to stay the proceedings until the end of your term of office . Following your appeal , the files were placed on the plenary ORG 's agenda but have not been examined .

In DATE ORG [ which started in DATE ] CARDINAL files concerning the lifting of immunity remain pending before the joint committee . CARDINAL of those files are in your name ; they were given the numbers CARDINAL and CARDINAL following your re - election on DATE . Since the beginning of this ORG all the files , including yours , have been sent before CARDINAL preparatory committees set up by the joint committee . These committees started work on DATE ( ... ) . They are to announce their decisions within DATE . ”

On DATE and DATE the applicant filed CARDINAL defence memorials against the suspension of the CARDINAL sets of criminal proceedings against him . In them he repeated his wish to be allowed to exercise his right to a fair trial .

Article CARDINAL of LAW , on the subject of parliamentary immunity , reads as follows :

“ Members of ORG shall not be liable for their votes and statements concerning parliamentary functions , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the ORG for that sitting , for repeating or revealing these outside the ORG .

A Member who is alleged to have committed an offence before or after election shall not be arrested , interrogated , detained or tried unless the ORG decides otherwise . This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to LAW if an investigation has been initiated before the election . However , in such situations the competent authority shall notify ORG immediately and directly .

The execution of a criminal sentence imposed on a member of ORG either before or after his election shall be suspended until he ceases to be a member ; the statute of limitations does not apply during the term of membership .

Investigation and prosecution of a re - elected deputy shall be subject to whether or not the ORG lifts immunity in the case of the individual involved .

Political party groups in ORG shall not hold discussions or take decisions regarding parliamentary immunity . ”

The Rules of Procedure of ORG of GPE provide , inter alia :

“ Work of the plenary ORG

Agenda

Rule CARDINAL : the agenda of ORG of ORG of GPE shall comprise :

Presentations of the Speaker to ORG .

Work to be included in the special agenda .

PERSON .

Questions to be put to the vote .

Parliamentary reports .

General debates and prior discussions on parliamentary research to be done .

Oral questions .

Draft legislation and other work submitted by the committees .

At the proposal of the recommendation committee and with the agreement of ORG , it is possible to set aside DATE and allocate a set time for items CARDINAL and CARDINAL .

It is also possible to set aside DATE for the votes referred to in items CARDINAL and CARDINAL .

The order in which items on the agenda are taken is determined according to the date on which they were received by ORG .

When the Speaker deems it necessary , the recommendation committee may propose to ORG the order in which matters pertaining to item CARDINAL should be examined . Requests concerning that order submitted by the Government , substantive committees and the authors of bills shall be examined by the recommendation committee .

The opinion of the recommendation committee shall be submitted for the approval of ORG . ( ... )

No subject which has not been subjected to the opinion of the recommendation committee , confirmed by ORG and announced in advance by ORG may be debated in ORG . ( ... )

Immunity

Requests to lift immunity and committee competent to examine them

Rule CARDINAL : requests for the lifting of a Member 's parliamentary immunity shall be transmitted by the Speaker 's Office to the joint committee , composed of members of the constitutional and judicial committees . ( ... )

The preparatory committee and its hearings

Rule CARDINAL : the Chair of the joint committee shall appoint a preparatory committee composed of CARDINAL sworn members to examine files concerning immunity . ( ... )

This committee shall examine all the documents and , if necessary , hear the Member concerned ; it shall not hear witnesses .

The preparatory committee shall submit its report within DATE of being convened .

The joint committee shall finalise the report within DATE .

The report of the joint committee

Rule CARDINAL : the joint committee shall examine the report and its appendices [ submitted by ] the preparatory committee .

The joint committee shall decide whether to lift the Member 's immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office .

If the joint committee 's report recommends a stay of proceedings , it shall be read out to ORG . If no objection to the report is received in writing within DATE , the report shall become final .

If the report recommends lifting immunity or if a written objection is received within DATE , the report shall be examined by ORG .

If the proceedings have been stayed and that decision is overturned by ORG , no action may be taken against the Member concerned until DATE or her term of parliamentary office , even if the legislature has been renewed .

The rights of the defence

Rule CARDINAL : When a request to lift a Member 's immunity has been received , the Member concerned may , if he wishes , defend himself or be defended by another Member before the preparatory committee , the joint committee and ORG .

The matter shall be decided on the evidence if a Member who has asked to speak in his defence fails to answer the invitation to do so .

In any event , the defence shall have a say .

The mere fact that a Member requests permission to waive his or her immunity shall not suffice .

Under LAW enshrined in LAW no . CARDINAL of CARDINAL DATE :

“ If the opening of proceedings is subject to authorisation , adoption of a decision or the resolution of a problem pending before another body ( ... ) , the running of time for the purposes of limitation shall be suspended until such authorisation is obtained , such decision adopted or such problem resolved . ”

Law no . DATE on LAW was passed on DATE and published in ORG on DATE . LAW provides :

“ ( CARDINAL ) When the investigation or prosecution depend on authorisation , adoption of a decision or the necessary resolution of a problem pending before another body , the running of time for the purposes of limitation shall be suspended until such authorisation [ is granted ] , such decision adopted or such problem resolved ( ... )

( CARDINAL ) Where an offence has been committed , the running of time shall be suspended from the time when :

( a ) the prosecutor questions or takes a statement from the suspect or the accused ;

( b ) a decision is taken to remand the suspect or the accused in custody ;

( c ) an indictment for the offence is issued ;

( d ) a conviction is pronounced , even if it concerns only some of the accused parties .

CARDINAL ) A suspension of limitation causes time to begin to run again . Where there are several grounds for suspension of limitation , the time begins to run again from the date of the last event triggering suspension ( ... ) ”

On DATE ORG adopted a series of judgments in cases concerning the lifting of several MPs ' parliamentary immunity . Those cases gave ORG an opportunity to clarify the scope of parliamentary immunity . The relevant passages of the judgments read as follows :

“ a ) Meaning of non - liability and parliamentary immunity

All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly . Quite evidently , the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law .

Parliamentary immunity is not an aim ; it is a means of enabling MPs to fulfil the nation 's wishes in full by perfectly reflecting the wishes of the people within the ORG .

Even though LAW is entitled “ Parliamentary Immunity ” , it actually establishes CARDINAL institutions : parliamentary non - liability and parliamentary immunity . The first paragraph of the Article explains that the members of ORG of GPE are not liable for their votes and statements in the course of the ORG 's work , for the views they express before the ORG or , unless the ORG decides otherwise on the proposal of the Speaker , for repeating or revealing these outside the ORG .

The second paragraph of the Article stipulates that a Member who is alleged to have committed an offence before or after election may not be arrested , interrogated , detained or tried unless the ORG decides otherwise . The only cases where this provision does not apply are those where a Member is caught in the act of committing a crime punishable by a heavy penalty , provided that proceedings were initiated before the election , and cases subject to LAW .

LAW does not specify on what grounds immunity may be lifted , and LAW do not cover the subject . That does not mean that the legislature has a free hand in the matter . The rationale for immunity and the way in which it has developed over DATE show that ORG 's powers concerning the lifting of immunity are not absolute but limited . Furthermore , the fact that immunity has a place in the LAW means that the rules and aims of immunity must be defined in the light of the rules and aims of LAW . There is no doubt that the intention , when immunity was provided for in LAW , was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered , and rightly so , from all worry and pressure . In other words , the aim of parliamentary immunity is to ensure that MPs are not prevented from fulfilling their functions , even temporarily , by arbitrary criminal proceedings . So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in LAW . ( ... )

In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen . He enjoys all the guarantees set out in the LAW and laws of GPE . All the principles that apply to citizens likewise apply to him . He may , for example , be taken into police custody , questioned , detained and , to all intents and purposes , subjected like any other citizen to all the applicable procedural rules . ( ... ) ”

On DATE the Secretariat of ORG drew up a list of all the instances of lifting of parliamentary immunity since DATE . According to that list , DATE ORG lifted the immunity of CARDINAL MPs . In the course of the CARDINALnd ORG 's life CARDINAL files concerning immunity were forwarded to the joint committee . In CARDINAL cases the committee decided to stay the proceedings until DATE MP 's term of office . In CARDINAL cases that decision was challenged . The files corresponding to those cases were placed on the plenary ORG 's agenda but never examined .

Since DATE ORG , CARDINAL files concerning the lifting of immunity have been sent before the joint committee . CARDINAL of them , by request , was forwarded to ORG ; the other CARDINAL remain pending before the joint committee .

Article CARDINAL of the Statute of ORG CARDINAL DATE ) provides :

“ a. ORG , representatives of members and the ORG shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions . These immunities shall include immunity for all representatives to the Consultative [ Parliamentary ] ORG from arrest and all legal proceedings in the territories of all members , in respect of words spoken and votes cast in the debates of the ORG or its committees or commissions . ”

The General Agreement on Privileges and Immunities of the Council of Europe ( DATE ) includes the following provisions :

“ LAW Representatives to the Consultative [ Parliamentary ] ORG and their substitutes shall be immune from all official interrogation and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions .

LAW During the sessions of the Consultative [ Parliamentary ] Assembly , the Representatives to the ORG and their substitutes , whether they be members of ORG or not , shall enjoy :

a. on their national territory , the immunities accorded in those countries to members of ORG ;

b. on the territory of all other member GPE , exemption from arrest and prosecution .

This immunity also applies when they are travelling to and from the place of meeting of the Consultative [ Parliamentary ] Assembly . It does not , however , apply when Representatives and their substitutes are found committing , attempting to commit , or just having committed an offence , nor in cases where the ORG has waived the immunity . ”

The additional LAW to ORG and Immunities of ORG DATE ) provides :

“ LAW The provisions of LAW shall apply to Representatives to the [ Parliamentary ] ORG , and their Substitutes , at any time when they are attending or travelling to and from , meetings of committees and sub committees of the Consultative [ Parliamentary ] ORG , whether or not the ORG is itself in session at such time .

LAW , immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned , but in order to safeguard the independent exercise of their functions in connection with ORG . Consequently , a member has not only the right but the duty to waive the immunity of its representative in any case where , in the opinion of the member , the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded . ”

In its Resolution CARDINAL ( DATE ) on LAW CARDINAL.a of LAW , ORG of ORG stated :

“ CARDINAL . ORG refers to its LAW ( DATE ) and LAW ( DATE ) on immunities of members of ORG , which underlined that immunities are granted in order to preserve the integrity of the ORG and to safeguard the independence of its members in exercising their NORP office . ( ... )

It resolves to interpret LAW as follows : regardless of the national regime of immunity , ORG or Substitutes shall be protected against prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .

The ORG also considers that it is appropriate for the relevant ORG organs , when examining requests for the waiver of immunity and for the defence of immunity of its members , to question whether the competent national authorities have respected LAW as interpreted by ORG and other relevant ORG legal instruments and texts which the respective countries have ratified or accepted . The ORG should express its concern when ORG norms have been obviously disregarded in respect of CARDINAL of its members . ( ... )

Consequently the ORG decides to :

add the following paragraph after paragraph CARDINAL in Rule CARDINAL of the ORG 's Rules of Procedure :

“ a. When dealing with requests for the waiver of ORG immunity , or with requests to defend that immunity of an ORG member , the competent ORG bodies shall interpret LAW as follows . ORG are immune from prosecution and arrest in the exercise of their functions as ORG members or when travelling on ORG business , whether this is inside or outside of their national territory . If they are not active within this meaning or not travelling on ORG business , the national regime shall apply within their country .

b. The terms ' in the exercise of their functions ' include all official duties discharged by ORG in the member states on the basis of a decision by a competent ORG body and with the consent of the appropriate national authorities .

c. In case of doubt , ORG shall decide if ORG members ' activities took place in the exercise of their functions . ”

Article CARDINAL of the LAW on Privileges and Immunities of ORG ( PPI ) ( DATE ) provides :

“ During the sessions of the ORG , its members shall enjoy :

( a ) in the territory of their own ORG , the immunities accorded to members of their ORG ;

( b ) in the territory of any other Member ORG , immunity from any measure of detention and from legal proceedings .

Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the ORG .

Immunity can not be claimed when a member is found in the act of committing an offence and shall not prevent the ORG from exercising its right to waive the immunity of CARDINAL of its members . ”

Rule CARDINAL of the Rules of Procedure of ORG , concerning the waiver of parliamentary immunity , states :

“ CARDINAL . In the exercise of its powers in respect of privileges and immunities , ORG shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its Members in performance of their duties .

Any request addressed to the President by a competent authority of a Member ORG that the immunity of a Member be waived shall be announced in ORG and referred to the committee responsible .

Any request addressed to the President by a Member or a former Member to defend privileges and immunities shall be announced in ORG and referred to the committee responsible .

The Member or former Member may be represented by another Member . The request may not be made by another Member without the agreement of the Member concerned .

As a matter of urgency , in circumstances where a Member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities , the President , after having consulted the chairman and rapporteur of the committee responsible , may take an initiative to assert the privileges and immunities of the Member concerned . The President shall communicate his initiative to the committee and inform ORG . ”

NORP The evaluation report on GPE adopted by ORG ) on DATE ( CARDINALth plenary meeting ) states :

“ III . NORP EXTENT AND SCOPE OF IMMUNITIES

According to the LAW , the following categories of high - ranking officials benefit from immunity in criminal proceedings :

- the President

- Members of ORG

- Prime Minister and ministers . ( ... )

Parliamentary Immunity is regulated in LAW . Members of ORG shall not be liable for their votes and statements concerning parliamentary functions , for the views they express before the ORG , or unless the ORG decides otherwise on the proposal of the ORG for that sitting , for repeating or revealing these outside the ORG ( Article CARDINAL ( CARDINAL ) ) .

Moreover , a Member of ORG who is suspected of having committed an offence before or after election , can not be arrested , interrogated , detained or tried unless the ORG decides to lift the immunity . This provision does not apply in cases where a Member is caught in the act of committing a crime punishable by a heavy penalty , nor does it apply if an investigation has been initiated before the parliamentary election . However , in such situations the competent authority shall notify ORG immediately ( Article CARDINAL(CARDINAL ) ) .

The execution of a criminal sentence imposed on a Member of ORG either before or after his / her election is to be suspended until s / he ceases to be a member ; the statute of limitations does not apply during the term of membership ( Article CARDINAL(CARDINAL ) ) . Investigation and prosecution of a re - elected deputy shall be subject to whether or not the ORG lifts his / her immunity ( Article CARDINAL ) ) . ( ... )

Political party groups in ORG shall not hold discussions or take decisions regarding parliamentary immunity ( Article CARDINAL(CARDINAL ) ) , nor concerning parliamentary investigations ( LAW . ( ... )

The GET [ ORG ] was concerned about the extensive list of officials who benefit from different types of immunity in GPE . It should be noted that parliamentary immunity in the form of “ inviolability ” is substantially debated and challenged by civil society . The scope of parliamentary immunity has been identified as one of the problem areas in the context of corruption .

The circle of high ranking officials who enjoy immunity ( inviolability ) stricto sensu under the LAW is limited to the President of the Republic , members of ORG , Prime Minister and ministers who in principle are also members of ORG . ( ... )

In the view of the GET , the regulation of the lifting of immunity of the members of ORG ( LAW and Articles CARDINAL - CARDINAL of the Regulation of ORG ) does not establish adequate conditions for objective considerations within the relevant parliamentary committees . A request by the prosecutor for the lifting of immunity is submitted to the Minister of ORG . After that , the request is transferred to ORG . ORG Prime Minister finally submits the request to the relevant parliamentary committee , which may delegate to sub - committees further consideration before the parliamentary committee brings the case to the Plenary for decision . No objective criteria have been established as regards the conditions for lifting immunity and the considerations would therefore appear to be political . Moreover , the GET was informed that the procedure may be lengthy , DATE .

Since DATE , CARDINAL requests to lift the immunity of CARDINAL Members of ORG had been submitted ; CARDINAL of these cases had related to abuse of function . There was no case where the Parliamentary immunity had been lifted . It seems that the established system of Parliamentary immunity and its application in practice constitutes an insuperable obstacle to the investigation , prosecution and adjudication of corruption offences . Therefore , the GET recommends to reconsider the system of immunities of members of ORG in such a way as to establish specific and objective criteria to be applied when deciding on requests for the lifting of immunities and to ensure that decisions concerning immunity are free from political considerations and are based on the merits of the request submitted by the prosecutor . ( ... ) ORG

Most NORP states recognise CARDINAL categories of immunity for parliamentarians : firstly , the " non - liability " or " freedom of speech " of parliamentarians in respect of judicial proceedings over the opinions expressed and votes cast in the discharge of their parliamentary duties ; secondly , their " inviolability " or " immunity in the strict sense " , shielding them from all arrest , detention or prosecution without the consent of the chamber to which they belong .

The precise scope of the immunity varies considerably from CARDINAL country to another . This results in a wide array of legal approaches to its implementation . In some GPE there is no such institution ( The GPE , GPE ) . In others its scope is very limited . For example , in the GPE immunity covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual . In GPE and GPE parliamentary immunity serves to prevent MPs from being arrested during sessions or on their way to or from ORG . It therefore affords them minimal protection .

That said , most of GPE Parties to the PERSON grant their MPs non - professional immunity from criminal prosecution during their term as MPs ( GPE , GPE , GPE DATE if the act does not clearly fall outside the ambit of their political activities – and GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ) and/or protection against imprisonment or deprivation of liberty ( arrest or detention in all those countries which provide for immunity from prosecution , as well as GPE , GPE , GPE , GPE and GPE ) . In certain cases MPs are protected from bodily searches , house searches and interception of their communications ( GPE , GPE , GPE , GPE , GPE ) . Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs , Except in GPE , where such decisions lie with the courts .

In several GPE the scope of immunity has been restricted , as witnessed by some recent constitutional reforms . In GPE , for example , since the constitutional reform of DATE , the ORG 's authorisation is no longer necessary for criminal proceedings to be brought , but only for detention , arrest and other judicial supervision measures . A similar change came about in GPE when LAW no . CARDINAL of DATE did away with the need for the prior authorisation of ORG in order for criminal proceedings to be brought against an MP . In GPE , since the constitutional reform of DATE , senators may be placed under judicial investigation or criminal proceedings may be brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators .

In GPE 's GPE the practice is generally for a new parliament to lift immunity from prosecution for all offences ( with the exception of political defamation ) at the start of the session . The aim of this is to protect the reputation of each Member of ORG , by ensuring that they attract less media attention if proceedings are brought against them . In DATE ORG published an opinion concerning a draft decision of ORG on the limitation of parliamentary immunity and the conditions in which authorisation to initiate investigations into corruption offences and abuse of duty may be given . That draft decision is an illustration of the current trend to limit the scope of immunity in NORP parliaments , at least where immunity from prosecution is concerned .

The duration of parliamentary immunity also varies from CARDINAL country to another . Some countries extend parliamentary immunity to criminal proceedings brought prior to the ORG 's election ( GPE , GPE , GPE , GPE , GPE , GPE ) . In other countries , even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP 's election to be continued , ORG may , of its own motion or at the request of the interested party , request the suspension of the proceedings or the waiving of restrictive measures during the MP 's term of office ( GPE , GPE , GPE ) .

As to the scope of parliamentary immunity ratione materiae , that is to say the acts it covers , there is a general tendency in the GPE Parties to the LAW for cases of flagrante delicto to be excluded . In certain constitutions flagrante delicto does not suffice to justify the lifting of parliamentary immunity ; the crime must be a particularly serious one ( GPE , GPE , GPE , GPE , GPE ) , but even this does not necessarily prevent ORG from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures . In GPE , for example , even if the MP is caught in the act , subsequent legal action may require the authorisation of the ORG concerned . In some countries the law excludes certain types of act from immunity ( LAW excludes high treason , felony and breach of the peace , for example ) or the criterion may be the severity of the penalty incurred ( LAW excludes , in certain circumstances , deliberate offences punishable with imprisonment for DATE ) .

Parliamentary immunity may be lifted in most countries , except in those which afford very limited protection to MPs ( GPE , GPE and GPE ) .

The procedure for lifting immunity is generally the same . It is usually provided for in ORG . It is set in motion by a proposal or a request for authorisation by the competent public authority ( in most cases ORG ) , the injured party or the parliamentarian concerned . The request is transmitted to the Speaker of the ORG , either directly or in certain cases through another authority ( Minister of ORG , Prime Minister ) , then examined by a special or ad hoc parliamentary committee , which gives an opinion after hearing the MP concerned . It is then for the full Chamber to decide , with or without a debate , in private or in public , whether or not to lift immunity . The possibility of appealing against a decision of the ORG to lift immunity exists in very few countries ( GPE , GPE ) .

The possibility for MPs to waive their own parliamentary immunity is not widespread ( GPE , GPE ) and is sometimes limited to minor offences ( summary offences in GPE ) or to specific offences ( defamation , in GPE ) . Under GPE 's LAW MPs have the right to consent to criminal proceedings . In GPE LAW gives MPs the right to consent in writing to be prosecuted or arrested .

In most of GPE no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to ORG , to guarantee its smooth operation . In GPE provisions governing immunity are traditionally a matter of public policy and MPs can not renounce it . Any act that violates parliamentary immunity is considered null and void . The question of immunity must be raised by a judge . A similar approach has been adopted in ORG , where renunciation of immunity has no legal effect .