CASE OF CAMPBELL AND FELL v. THE UNITED KINGDOM

Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 6-3-b;Violation of Art. 6-3-c;Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG The first applicant , Mr. PERSON , is a GPE citizen , born in GPE in DATE and resident in GPE since DATE .

In DATE , he was convicted of various offences , including conspiracy to rob and possession of a firearm with intent to commit robbery , and sentenced to CARDINAL years’ imprisonment . He was subsequently detained in a number of different prisons and , on DATE , was in GPE , GPE . He is now at liberty .

ORG The second applicant , Father PERSON , is a GPE citizen , born in GPE in DATE . He is a NORP priest .

In DATE , after being convicted of conspiracy to commit arson , conspiracy to commit malicious damage , and taking part in the control and management of an organisation using violent means to obtain a political end , he was sentenced to DATE imprisonment . He too was subsequently detained in a number of different prisons and , on DATE , was in FAC . He is now at liberty .

ORG At all relevant times , both applicants were classified as " category A " prisoners ( see paragraph CARDINAL ( a ) below ) . The offences of which they were convicted were believed by the authorities to form part of , or to be connected with , ORG terrorist activities . According to the ORG ’s report , both applicants have consistently denied that they were members of that organisation .

ORG On DATE , an incident occurred in FAC . Before the Commission , there was considerable dispute between the Government and the applicants as to precisely what took place , notably as to the weapons and amount of violence used , but the following summary suffices for the present purposes .

Mr. PERSON , Father PERSON and CARDINAL other prisoners engaged in a protest at the treatment of another prisoner , by sitting down in a corridor of the prison and refusing to move . They were removed by prison officers after a struggle and in the process injuries were sustained by certain members of staff and by both applicants . Mr. PERSON , who had been more seriously injured , was transferred to FAC hospital for treatment and returned to FAC on DATE .

ORG The CARDINAL prisoners involved in the above - mentioned incident were all charged with , and found guilty by ORG of , disciplinary offences against the Prison Rules DATE , as amended ( " the Rules " ; see paragraphs CARDINAL below ) . The Board heard the cases on DATE , except that of Mr. PERSON who was then still at GPE .

ORG On DATE , immediately after his return to ORG , Mr. PERSON was informed that he was charged with the disciplinary offences of mutiny or incitement to mutiny and doing gross personal violence to an officer , contrary to Rules CARDINAL ( CARDINAL ) and ( CARDINAL ) ( see paragraph CARDINAL below ) . The first charge concerned his participation with the other prisoners in the incident ; the basis of the second charge was an allegation that , on that occasion , he had struck an officer with a broomhandle .

A preliminary hearing before the Prison Governor ( see paragraph CARDINAL below ) took place on DATE , when the charges were referred to ORG . The latter heard the case , in private , on DATE . The applicant had received , before both hearings , " notices of report " and , before the ORG ’s hearing , a copy of a form outlining its procedure ( see paragraph CARDINAL below ) . The " notices of report " in connection with the ORG ’s proceedings were issued at TIME on DATE . One notice began as follows :

" A report has been made against you by [ a prison officer ] that at CARDINAL on DATE at ‘ D’ hall you committed an offence under paragraph CARDINAL of Rule DATE , i.e. mutiny . "

The other notice began :

" A report has been made against you by [ a prison officer ] that at CARDINAL on DATE at ‘ D’ hall you committed an offence under paragraph CARDINAL of Rule CARDINAL , i.e. did strike an officer with a broomhandle . "

Both notices concluded as follows :

" Your case will be dealt with at adjudication DATE , when you will be given every opportunity to make your defence .

If you wish to reply to the charge in writing you may do so on the back of this form . "

Mr. PERSON attended neither hearing . It is recorded that he declared prior to the Governor ’s hearing that he would be prepared to attend only if he were legally represented . His request for legal representation before the ORG was also refused , in accordance with the standard practice at the time ( see paragraph CARDINAL below ) . Before the Board met , he had been visited by its chairman and warned that it would proceed in his absence ; the records state that he understood this warning and the charges against him . It appears that he did not expressly seek either an adjournment of ORG hearing or a consultation with a solicitor beforehand ; under the then practice , a request of the latter kind would also have been unsuccessful ( ibid . ) .

Before the ORG and the ORG , Mr. PERSON gave additional reasons for his non - attendance : firstly , having learned of the outcome of the ORG ’s hearing on DATE and having previous experience of such proceedings himself , he did not believe that he would receive a fair hearing and considered that his presence would be otiose ; secondly , he was feeling very ill as a result of his injuries and , on DATE , he was " in the punishment cell ; lying on the floor ; unable to walk ; not being fed and in considerable pain " . As regards the latter allegations , which were disputed by the ORG , the applicant had been certified by the medical officer , before both hearings , to be fit for punishment . ORG concluded that it was not established that Mr. PERSON was prevented from attending rather than that he had decided , for his own reasons , not to attend ; it proceeded on the assumption that his absence from the ORG ’s hearing was a matter within his own responsibility .

ORG Before ORG , a plea of not guilty on each charge was entered on behalf of the applicant , who did not submit any written defence . According to the record of the proceedings - which apparently in neither case lasted longer than TIME - , CARDINAL prison officer gave evidence on the mutiny charge , reading a statement describing the part allegedly played by Mr. PERSON and the other prisoners in the incident , and another gave evidence on the personal violence charge , to the effect that he had been struck by Mr. PERSON . The evidence of the first witness was accepted by ORG and its chairman put certain questions to the second .

On DATE , the applicant was found guilty on both charges and was awarded , for the mutiny and the violence offences respectively , CARDINAL ORG and CARDINAL days’ loss of remission , together , again respectively , with CARDINAL days’ and CARDINAL days’ loss of certain privileges , exclusion from associated work , stoppage of earnings and cellular confinement , the sanctions for the CARDINAL offences to run consecutively ( see paragraphs CARDINAL and CARDINAL below ) . On his reception into prison , Mr. PERSON had been given an estimated date for release ( see paragraph CARDINAL below ) of DATE ; at the time of the ORG ’s award , he had already forfeited DATE of remission in CARDINAL separate adjudications for offences against discipline and the balance of potential remission available to him totalled DATE .

Observations filed with the Commission on behalf of Mr. PERSON on DATE and on DATE indicated , respectively , that he was contemplating making and had made an application to the LANGUAGE courts , by way of certiorari proceedings ( see paragraphs CARDINAL - CARDINAL below ) , for review of the DATE adjudication by ORG in his case .

A memorandum filed on DATE revealed , however , that on counsel ’s advice , given in DATE and DATE , both Mr. PERSON and Father Fell had decided not to make such an application ; counsel considered , as regards the former , that proceedings would be destined to fail on the ground that he had " refused " to participate in the adjudication . At the hearings of DATE before ORG , the Government indicated that , even in DATE , ORG would probably not have opposed a request by Mr. PERSON for leave to apply for certiorari out of time ( see paragraph CARDINAL below ) , but would do so now . He has , in fact , never pursued the matter .

The question was subsequently reconsidered in the case of Father PERSON who had previously been advised , in DATE , that an application might be feasible . In DATE , senior counsel advised him to seek certiorari immediately on the ground of " substantial unfairness " in the ORG ’s hearing of DATE in his case , which he had attended . Later in the year , he obtained the necessary leave from the court , but his application failed , both at first instance and on appeal .

ORG Whilst in custody Mr. PERSON was the subject of CARDINAL adjudications for disciplinary offences , as a result of which he lost DATE of remission ( including the CARDINAL forfeited as a result of the ORG ’s award of DATE ) . Following applications by him pursuant to the procedure described in paragraph CARDINAL below , DATE of remission were restored to him . He was released from prison on DATE , having served DATE CARDINAL years’ sentence , including time spent in custody on remand .

ORG Father Fell petitioned the Home Secretary on or DATE in the following terms : " During the course of [ an incident at FAC on DATE ] , I sustained a number of physical injuries . My request to yourself is that I be permitted to see and to consult with my lawyer , pending further action that I may deem necessary to take . " DATE , in a supplementary petition , the applicant stated that he wanted to see his solicitor regarding compensation for his injuries and any civil proceedings he might be advised to take .

The Home Secretary replied on DATE . He informed Father PERSON that , in accordance with the " prior ventilation rule " ( see paragraph CARDINAL ( c ) below ) , he would be able to seek legal advice on the substance of his complaints once they had been investigated through the normal internal channels and he had been given the result of the investigation .

ORG Father Fell petitioned again on DATE . He gave details of his allegations concerning the incident of DATE and its aftermath and asked for a thorough investigation ; he added further information concerning his injuries in a supplementary petition of DATE .

In his reply of DATE , the ORG Secretary indicated that he was satisfied , after investigation , that there was no substance in the applicant ’s allegations of assault and of inadequate or unnecessarily delayed medical treatment ; he informed the applicant that he would be granted facilities to seek legal advice on the matters referred to in his petition , if he still wished to do so .

ORG In a petition of CARDINAL DATE to ORG , Mr. PERSON stated , but without indicating the reasons , " I want to see my lawyer " . On DATE , the request was refused , on the ground that he had not supplied sufficient details for a proper internal inquiry to commence . On DATE , the same ground was given for refusing a further petition , dated DATE , in the following terms : " As a result of injuries received at the hands of prison staff at ORG I intend to take legal action and therefore need to see my solicitor . The incident happened in DATE and I have petitioned about it once before . "

ORG At this time , there was also a certain amount of correspondence with Messrs. FAC , the solicitors then acting for both applicants . After a letter of DATE from Mr. PERSON to them had been posted through the normal prison channels , they wrote to ORG on DATE stating that they had been instructed to represent him in civil proceedings and seeking authority to approach the Prison Governor to discuss their client ’s allegations . However , a letter of DATE from them to Mr. PERSON , referring , it seems , to legal aid , was stopped .

Instructions from the prisoners involved in the DATE incident also apparently reached the solicitors by other means . On DATE , they wrote to FAC stating that both of the applicants and CARDINAL other prisoners wished to see them " concerning certain matters of a legal nature " and requesting confirmation that this could be done in private . On DATE - that is DATE after the Home Secretary had told Father PERSON that he could consult a lawyer ( see paragraph CARDINAL above ) - , the Governor replied that appointments to see , inter alios , that applicant could be made , but that according to prison rules Mr. PERSON was not yet in a position to seek legal advice , since ORG examination of his complaints had not yet been completed .

In a reply of DATE to the solicitors’ above - mentioned letter of DATE , ORG stated that Mr. PERSON ’s letter of DATE to them had been posted in error and that he could not correspond with or receive visits from them until the " prior ventilation rule " ( see paragraph CARDINAL ( c ) below ) had been complied with as regards any complaint he might wish to make .

On DATE , Messrs. ORG were given permission to consult with Mr. PERSON in connection with his application to the Commission ( see paragraph CARDINAL ( e ) below ) . His account of the DATE incident , contained in a memorandum of DATE to the Commission , was subsequently accepted by the authorities as a sufficient basis for an internal inquiry into his complaints to be commenced . The inquiry - in which the applicant had not co - operated - was completed on DATE and , on or DATE , he was told that he could take legal advice concerning the complaints that had been investigated .

ORG Both applicants subsequently obtained various legal advice and , by writs issued on DATE , instituted proceedings , alleging assault , against individual prison officers , the Deputy Governor and ORG . These actions , in which statements of claim were served DATE , were still pending at the time of the hearings before ORG ( DATE ) .

ORG In a reply of DATE to a letter of CARDINAL DATE from Messrs. PERSON & PERSON - who had already raised the matter in their letter of DATE ( see paragraph CARDINAL above ) - , FAC stated that at that stage a visit by them to Father Fell would be subject to LAW ( CARDINAL ) ( see paragraph CARDINAL ( d ) below ) and would therefore have to take place within sight and hearing of an officer . They replied that they were unable to accept these conditions and intended to refer the matter to " ORG " .

On DATE , the solicitors informed the Governor of the introduction , on DATE , of Father Fell ’s application to the Commission ; on DATE , the Governor informed them that they could interview their client in connection with that application in sight but out of hearing of an officer ( see paragraph CARDINAL ( e ) below ) .

ORG On or about CARDINAL DATE , Father PERSON asked , in a petition to the ORG Secretary , for the opportunity for an independent medical consultation . On DATE , ORG stated that the Secretary of ORG was not prepared to grant this request .

ORG After Mr. PERSON ’s return from GPE to ORG , a request was made by him or his family , apparently on DATE , for him to be examined by an independent doctor . According to the Government , he was advised to pursue the matter by way of petition to the ORG Secretary , but did not do so . According to the applicant , the request was categorically refused .

ORG In DATE , when in FAC , Father PERSON was informed , in reply to his petition of DATE , that the ORG Secretary was not prepared to allow him to correspond with a ORG , on the ground that although she had been known to him before he came into custody , their relationship was not considered to amount to a " close personal friendship " . In a letter of DATE to a Member of ORG , the ORG Secretary maintained this decision , which he explained by reference to the practice concerning the permitted correspondents of " category A " prisoners ( see paragraph CARDINAL ( a ) below ) : there was no evidence of a friendship as aforesaid between the applicant and PERSON , although he had known her for longer than some of his approved correspondents .

Father PERSON also alleged that he had not been allowed to correspond with other friends , including another nun , PERSON . According to the Government , he corresponded with CARDINAL persons prior to his conviction , whilst detained on remand , and was allowed to correspond with QUANTITY persons thereafter .

ORG The control over and responsibility for prisons and prisoners in GPE and GPE is vested by LAW in the Home Secretary . He is empowered by LAW to make rules " for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein " . Such rules are contained in statutory instruments laid before ORG and made in accordance with the negative resolution procedure , that is , they come into operation unless ORG otherwise resolves .

The rules made by the Home Secretary and currently in force are the Prison Rules DATE , as amended .

ORG Rule CARDINAL creates a total of CARDINAL disciplinary offences of varying degrees of seriousness . So far as relevant to the present case , it provides that " A prisoner shall be guilty of an offence against discipline if he

( CARDINAL ) mutinies or incites another prisoner to mutiny ;

( CARDINAL ) does gross personal violence to an officer " .

These acts are classified as " especially grave offences " .

ORG The Rules list the " awards " which may be made for an offence against discipline ; they range from a caution upwards and include :

( a ) forfeiture of certain privileges ;

( b ) exclusion from associated work ;

( c ) stoppage of earnings ;

( d ) cellular confinement ;

( e ) forfeiture of remission of sentence .

In the case of an " especially grave offence " , the sanctions mentioned at ( b ) , ( c ) and ( d ) above may not be imposed for a period exceeding DATE but there is no limit as regards those mentioned at ( a ) and ( e ) ( Rules CARDINAL and DATE ) .

Where CARDINAL offence has been committed , the respective awards may be ordered to run consecutively , although there is no provision in the Rules on this point .

Section CARDINAL ( CARDINAL ) of the Prison Act DATE provides :

" Rules made under LAW may make provision whereby , in such circumstances as may be prescribed by the rules , a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct , and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire . "

Under Rule CARDINAL ( made pursuant to this section ) , a prisoner serving a sentence of imprisonment other than for life " may ... be granted remission " not exceeding CARDINAL of his sentence . This therefore represents the maximum period that may be forfeited under a disciplinary award .

Under both LAW and the LAW , remission - which is seen by the authorities as part of the process for encouraging the reform of prisoners - is a discretionary measure . In practice , at the outset of his sentence every prisoner is given an estimated date for release , calculated by reference to the maximum possible remission , and he will be released on that date unless remission has been forfeited in disciplinary proceedings . Forfeiture of remission - which is not awarded solely for the most serious offences - does not have the effect of increasing the original sentence and it is the latter which continues to provide the legal basis for the detention .

CARDINAL ORG constituting a disciplinary offence under the Rules may also amount to an offence under the criminal law . Thus , doing gross personal violence to an officer corresponds to the crime of assault occasioning actual bodily harm . Mutiny and incitement to mutiny , on the other hand , are not as such offences under the general criminal law , although the underlying facts might found a charge of , for instance , conspiracy .

According to the Government , where the conduct amounts to both a disciplinary and a criminal offence , ORG of ORG decides on an ad hoc basis whether the matter should be referred to the police with a view to prosecution in the courts . Conduct so referred , they said , generally involved substantial violence ; other relevant factors might be the prevalence of the conduct in question within the prison , the feelings of staff and inmates , the prisoner ’s record and behaviour , the amount of any remission he might previously have lost and of his sentence remaining to be served , and the cost , inconvenience and security risks involved in a criminal trial .

According to the applicants , however , an individual prison officer may himself report the matter to the police , and the Government recognised that , in any case where the police themselves decided not to prosecute , a private prosecution remained a possibility . Moreover , the same facts may , theoretically at least , give rise to both criminal and disciplinary proceedings ( see PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

ORG Where a prisoner is to be charged with an offence against discipline , the charge must be laid as soon as possible and must , in the first instance , be inquired into by the prison governor , generally not DATE following the laying of the charge ( Rule CARDINAL ) . The prisoner must be informed of the charge as soon as possible and , in any event , before the governor ’s inquiry ( Rule CARDINAL ) .

Certain less serious matters are dealt with by the governor alone . In the case , however , of a charge of an " especially grave offence " , he has to inform the Home Secretary forthwith and , unless otherwise directed by him , refer the charge to the prison ’s ORG Rule CARDINAL ) .

ORG A ORG is a body that has to be appointed , by the ORG Secretary , for each prison in GPE and GPE ; its members , CARDINAL of whom must be justices of the peace - who are not necessarily lawyers - , hold office for DATE or such less period as the Home Secretary may appoint ( section CARDINAL of the Prison Act DATE , as amended by LAW DATE , and Rule CARDINAL ) . They may be re - appointed .

There are lCARDINAL Boards in all and each has DATE members , who are unpaid but are reimbursed their expenses . Anyone may seek appointment but in practice most candidates are persons suggested by existing members . The main principles adopted in making appointments are to achieve a roughly equal number of magistrates and non - magistrates ; to provide members having the requisite personal qualities , interest and time ; and to ensure that membership contains a good cross - section of the population . A ORG is normally appointed for a DATE term ; there is no express statutory provision enabling the Home Secretary to dismiss a member and resignation before expiry of a term of office would , according to the Government , be required only in the most exceptional circumstances .

ORG A ORG duties include , in addition to inquiring into charges of disciplinary offences , satisfying itself as to the state of the premises , the administration of the prison and the treatment of inmates , hearing a prisoner ’s complaints or requests , directing the governor ’s attention to matters calling for his attention and making reports to ORG CARDINAL , CARDINAL and CARDINAL ) . In case of urgent necessity , it has power to suspend any prison officer until the decision of the ORG Secretary is known ( Rule CARDINAL ( CARDINAL ) ) . Its members are required to visit the prison frequently , have a right of access to every part of the prison and to prison records and may interview any prisoner out of the sight and hearing of officers ( Rule CARDINAL ) . A ORG ’s adjudicatory functions generally account for a small proportion of its overall duties and , of the small percentage of prison disciplinary proceedings which are conducted before ORG , few concern " especially grave offences " .

The various functions of ORG were examined by an independent committee set up by " ORG " , ORG and ORG . In its report of DATE ( " the ORG report " ) , this committee noted that " Boards take their duties of adjudication very seriously " , but that " in spite of the efforts made to do justice it is doubtful whether it is seen to be done " . It concluded that to be involved in the adjudication of serious offences was incompatible with the supervisory body ’s need to establish conspicuous independence and therefore recommended that " the body responsible for supervision should not have a disciplinary function " . Nevertheless , " after careful consideration " , the Home Secretary decided in DATE that " the independence of ORG was compatible with their other functions " .

The status of ORG was also considered in the GPE case ( see paragraph CARDINAL below ) . In ORG , Lord Justice PERSON stated that " Boards of visitors hold the balance between the governor and the internal discipline of the prison and the prisoner himself and , when sitting [ in an adjudicatory capacity ] , can be regarded as ‘ an impartial and independent authority’ " ; for Lord Justice PERSON , a ORG ’s adjudicatory function " was properly regarded as a separate and independent function , different in character from [ its ] other functions " .

ORG When a charge of an " especially grave offence " is referred to a Board , its chairman must summon a special meeting at which not CARDINAL nor CARDINAL members - CARDINAL being justices of the peace - must be present ( Rule CARDINAL ) . If , after inquiring into the charge , the ORG finds the offence proved , it has to make CARDINAL of the awards mentioned in paragraph CARDINAL above , although the implementation thereof may be suspended .

ORG Neither LAW nor the Rules lay down a detailed code of procedure for disciplinary proceedings before ORG . However , Rule CARDINAL ( CARDINAL ) - a similar provision appears in LAW ( CARDINAL ) of the LAW - reads as follows : " At any inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case . "

The procedure used to be arranged as a matter of practice . Since DATE ORG have been issued by ORG of ORG with a booklet entitled " Procedure for the Conduct of an Adjudication by a Board of Visitors " .

ORG Proceedings before ORG are initiated by means of a report by a prison officer to the governor containing details of the alleged offence . The prisoner will receive a " notice of report " , stating the alleged offence and the time , date and place thereof , and may reply to the charge in writing . He will also be given a form , which has no statutory force , outlining the procedure which will be followed when he appears before ORG : he will be asked to plead to the charge and may question witnesses in support of the charge , request that witnesses on his behalf be heard and himself give evidence or make his defence . The hearing takes place in private within the prison and the ORG ’s decision is pronounced under the same conditions .

The Rules themselves contain no specific provision as regards legal advice about , or legal representation at , an adjudication before a ORG . Under the practice followed prior to DATE , a prisoner would not have been granted leave to seek legal advice before the hearing . Furthermore , ORG held in PERSON v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) that although a ORG had to observe the requirements of natural justice and act fairly in disciplinary proceedings , a prisoner was not entitled to legal representation thereat . However , in its judgment of CARDINAL DATE in NORP v. ORG , ex parte GPE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , ORG held that although there is no absolute entitlement to such representation , a ORG does have a discretion to allow it . Furthermore , the prisoner has a right to require that that discretion be exercised and that his request for representation be properly considered on its merits ; if the ORG fails to exercise its discretion properly , its decision must be quashed . Mr. Justice PERSON added that in most , if not all , cases involving a charge of mutiny ORG , properly directing itself , could reasonably decide not to allow legal representation .

ORG In DATE , in the GPE case ( see paragraph CARDINAL below ) , ORG had to consider , for reasons of jurisdiction , whether disciplinary proceedings before a ORG were a " criminal cause or matter " , within the meaning of the relevant legislation . It answered this question in the negative .

Lord Justice PERSON based his decision on the fact that the charges heard by ORG were not " criminal " , that is charges " of an offence against public law " , and that ORG was not a court of criminal jurisdiction .

Lord Justice PERSON considered that the ORG ’s proceedings possessed some of the attributes of a criminal cause or matter ( for example , accusation , inquiry , adjudication and possible punitive consequences ) but lacked the essential characteristic , namely a penal proceeding for the infraction of a requirement relating to the enforcement and preservation of public law and order . In determining the nature of proceedings , account also had to be taken of their context and overall objective . Although an offence under the Rules might coincide with a crime under the general law and lead to a measure corresponding to a penalty or punishment , this did not transform the ORG ’s adjudication into a criminal cause or matter . It was essentially a domestic disciplinary proceeding , which did not purport to deal with misconduct in its relation to the public law or the public interest and was designed and pursued with the limited objective of maintaining order within the confines of a prison . It would also be illogical and anomalous to regard as a criminal cause or matter proceedings arising from an offence under the Rules which did not amount to a criminal offence under the general law .

However , in NORP v. ORG , ex parte DATE , Mr. Justice McCullough , in his judgment of CARDINAL DATE ( ORG , DATE ) , referred to the " close similarity " between an accusation of breach of the Rules and an accusation of a criminal offence : each was followed by an adjudication and might lead to consequences of a punitive character , for example , in the former case , forfeiture of remission . Although prison disciplinary offences were offences against a private code , they were also " penal " ; in principle , the relevant Rules should be construed no more harshly against a prisoner than would be appropriate were the offences criminal . Again , in the GPE case ( see paragraph CARDINAL in fine above ) it was conceded on behalf of ORG that the standard of proof to be applied in disciplinary adjudications was a criminal one .

ORG Under Rule CARDINAL , disciplinary awards made by ORG may be remitted or mitigated by the Home Secretary or , subject to his directions , by ORG itself . Procedures and criteria for the restoration of forfeited remission of sentence are laid down in Circular Instruction CARDINAL/CARDINAL issued by the Minister : basically , the prisoner must show a significant improvement indicative of a genuine change of attitude , and the power to restore is not to be used merely to modify an award which is subsequently thought excessive or open to doubt .

Applications for remission or mitigation of awards are normally made in the first instance to ORG itself . Its decision may be the subject of a petition by the prisoner to the ORG Secretary . Under Rule CARDINAL , every prisoner has to be provided on or shortly after his reception into prison with information in writing about , inter alia , the proper method of making petitions .

In the FAC case ( see paragraph CARDINAL below ) , the members of ORG expressed the view that a petition under Rule CARDINAL was not to be regarded as a formal appeal ; it was noted , amongst other things , that the ORG Secretary was not empowered to quash ORG finding of guilt .

ORG ( a ) The question whether the LANGUAGE courts have jurisdiction to review disciplinary proceedings before ORG was considered in NORP v. Hull ORG , ex parte PERSON and others . In that case , application was made for orders of certiorari to quash , on the ground of failure to observe the rules of natural justice , certain decisions imposing disciplinary awards , taken by a ORG in DATE .

( b ) In a judgment of DATE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , ORG held that although a ORG was in the nature of a judicial body under a duty to act judicially , it was not subject to control by way of certiorari , a remedy which did not extend to private disciplinary proceedings in a closed body enjoying its own form of discipline and rules . It was stressed that a ORG had an " intimate relationship " with the prison and , when adjudicating , was part of the latter ’s disciplinary machinery .

( c ) Notice of appeal against this decision was served on DATE . ORG allowed the appeal in its judgment of DATE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . It held that there was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an internal disciplinary character . There was no binding authority as to whether certiorari would lie against disciplinary decisions of ORG and the question had to be decided in the light of public policy . A ORG ’s disciplinary functions were separate and independent from its other functions . When hearing disciplinary charges it was not imposing summary discipline as part of DATE to day administration of the prison but was instead an independent body which could only punish a prisoner after a formalised inquiry and/or hearing . In doing so it was exercising a judicial function and its decisions were therefore subject to control by the courts by certiorari in appropriate cases . However , the remedy was discretionary and relief would be granted only where there had been a failure to act fairly , having regard to all the circumstances and such unfairness had given rise to a substantial , as distinct from a trivial or merely technical , injustice .

CARDINAL ORG The case was then remitted to ORG which , by judgment of DATE ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , quashed certain of the decisions taken by ORG . ORG observed that section CARDINAL ( CARDINAL ) of LAW and Rule DATE ( CARDINAL ) ( see paragraph CARDINAL above ) were declaratory of the basic rule of natural justice that every party to a controversy had a right to a fair hearing ; although , on the facts , this rule had not been observed as regards the quashed decisions , there was nothing in the ORG ’s procedure in general to which any objection could properly be taken .

ORG pointed out that the right to a fair hearing before a ORG included the right to call evidence ; the chairman ’s power to refuse to allow a prisoner to call witnesses had to be exercised reasonably , in good faith and on proper grounds ( which would not include mere administrative convenience ) . Further , the prisoner must also have a sufficient opportunity to deal with the evidence given against him , which might necessitate giving him the opportunity to cross - examine witnesses whose evidence was initially before ORG in hearsay form .

ORG Applications for certiorari must in principle be made within a prescribed time - limit running from the date of the decision challenged : in DATE , the time - limit was DATE ; since DATE , it has been DATE . Leave may be granted to apply out of time ; this is a matter for the court ’s discretion but experience shows that if a late application is not opposed by ORG , leave will not be refused .

Where decisions taken by ORG in disciplinary proceedings are quashed by a court , the charges in question may subsequently be the subject of a fresh adjudication by a differently constituted Board .

ORG The question of ORG correspondence and visits is dealt with in a number of the Rules .

With a view to securing uniformity of practice throughout prison establishments , the ORG Secretary also issues to prison governors management guides or directives in the form of ORG ( " Orders " ) and ORG ( " Instructions " ) . Unless otherwise authorised , governors are required to comply with these directives , but they do not have , or purport to have , the force of law . As far as correspondence and visits are concerned , the directives are intended to serve a dual function : on the one hand , to circumscribe the discretion conferred on governors by the Rules , and , on the other , to state the manner in which the ORG Secretary has decided in certain respects to exercise his own discretionary powers thereunder .

Prior to DATE , the directives in question were made available to Members of both ORG for reference but not to the public or prisoners , although the latter received , by means of cell cards , information about certain aspects of the control of correspondence and visits .

ORG The basic Rules on correspondence and visits , which were in force at the time of the events giving rise to the present case , included the following :

" CARDINAL(CARDINAL ) The Secretary of ORG may , with a view to securing discipline and good order or the prevention of crime or in the interests of any persons , impose restrictions , either generally or in a particular case , upon the communications to be permitted between a prisoner and other persons .

( CARDINAL ) Except as provided by statute or these Rules , a prisoner shall not be permitted to communicate with any outside person , or that person with him , without the leave of the Secretary of ORG .

( CARDINAL ) Except as provided by these Rules , every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him , and the governor may , at his discretion , stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length .

( CARDINAL ) Every visit to a prisoner shall take place within the sight of an officer , unless the Secretary of ORG otherwise directs .

( CARDINAL ) Except as provided by these Rules , every visit to a prisoner shall take place within the hearing of an officer , unless the Secretary of ORG otherwise directs .

( CARDINAL ) The Secretary of ORG may give directions , generally or in relation to any visit or class of visits , concerning DATE and times when prisoners may be visited . "

" CARDINAL ( CARDINAL) A prisoner shall not be entitled under [ Rule CARDINAL ] " - which regulates the quantity of correspondence and visits - " to communicate with any person in connection with any legal or other business , or with any person other than a relative or friend , except with the leave of the Secretary of ORG . "

ORG The foregoing Rules were supplemented or modified , either by Orders or Instructions or by further Rules , in a number of respects , including the following .

( a ) Under Rule CARDINAL ( CARDINAL) , as supplemented by LAW , prisoners had to seek ORG leave to correspond with or be visited by any person other than a close relation ; they were , however , also normally allowed , without the necessity to seek such leave , to correspond with or be visited by other relatives or existing friends , but the governor could forbid such correspondence or visits on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime . Governors had a discretion to allow communications with certain other persons not personally known to the prisoner before he came into custody . However , it would have been unlikely that such discretion would have been exercised in favour of " category A " prisoners , such as Mr. PERSON and Father PERSON ; this is the security category reserved for persons who , if they escaped , would be highly dangerous to the public or the police or to the security of the ORG .

( b ) With effect from DATE , the extent of the control of correspondence relating to civil or criminal proceedings to which the prisoner is already a party was limited by Rule CARDINAL ( CARDINAL ) , which reads :

" A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under LAW ( CARDINAL ) of these Rules . "

( c ) Until DATE , inmates had to petition the ORG Secretary for permission to seek advice about , or give instructions for , the institution of civil proceedings ( with the exception of certain divorce cases ) . On DATE , Instruction CARDINAL/CARDINAL introduced changes that were subsequently reflected in Rule CARDINAL ( CARDINAL ) , which came into operation on DATE and reads :

" Subject to any directions of the Secretary of ORG , a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings . "

Instruction CARDINAL/CARDINAL - and subsequently Order CARDINALA - further provided , inter alia , that :

( i ) the inmate had to have sought a solicitor ’s advice before he would be permitted to institute proceedings ;

( ii ) at each stage a written application , with reasons , had first to be made to the prison governor for the necessary facilities , which could take the form of a letter or a visit ; they had to be granted immediately , except that , in the case of prospective civil proceedings against ORG ( or any servant thereof ) " arising out of or in connexion with " the imprisonment , the " prior ventilation rule " generally applied .

The effect of the last - mentioned rule was that the prisoner would not be granted facilities to obtain legal advice , by correspondence or at a visit , about such proceedings unless and until he had raised his complaint through the normal internal channels ( petition to the ORG Secretary , or application to ORG , a visiting officer of the Home Secretary or the prison governor ) and been given a definitive reply , whether favourable or not .

( d ) Visits by legal advisers were subject to the following special Rule :

" CARDINAL ( CARDINAL ) The legal adviser of a prisoner in any legal proceedings , civil or criminal , to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings , and may do so out of hearing but in the sight of an officer .

( CARDINAL ) A prisoner ’s legal adviser may , with the leave of the Secretary of ORG , interview the prisoner in connection with any other legal business in the sight and hearing of an officer . "

Disciplinary proceedings before a ORG were not considered by the authorities to be " legal proceedings " for the purposes of the Rules , notably Rule CARDINAL ( CARDINAL ) and Rule CARDINAL ) CARDINAL .

( e ) There were special , less strict , provisions concerning applications to the Commission ( Order CARDINALB CARDINAL ) .

ORG Prior to CARDINAL DATE , both Orders and Instructions contained , in addition to directives on the control of ORG correspondence and visits , internal rules and guidance of a general nature concerning DATE to day administration of the prison . With effect from DATE , the directives on correspondence and visits were substantially revised . In addition , revised Orders on those subjects have been published in their entirety , matters of a management or administrative nature which do not concern a prisoner ’s entitlement to correspond or receive visits and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions . The Rules themselves have not been amended , although the Government have indicated that as soon as practicable Rule CARDINAL ( CARDINAL) ( see paragraph CARDINAL above ) would be repealed in so far as it affected correspondence .

ORG So far as is material to the present case , the earlier position is now modified in the following respects .

( a ) The new Orders ( nos . CARDINALBCARDINAL - CARDINALBCARDINAL ) state that , with certain exceptions , a prisoner may correspond with any person or organisation , provided always that the regulations on the contents of correspondence and the " simultaneous ventilation rule " are observed .

( b ) The " simultaneous ventilation rule " , set out in LAW j , has taken the place of the " prior ventilation rule " ( see paragraph CARDINAL ( c ) in fine above ) . Legal advice concerning civil proceedings in respect of prison treatment may now be obtained as soon as the prisoner has raised his complaint through the prescribed procedures ; he no longer has to await the outcome of the internal inquiry .

( c ) Rule CARDINAL ( CARDINAL ) ( see paragraph CARDINAL ( d ) above ) continues to apply to visits by a legal adviser concerning legal proceedings to which the prisoner is already a party . Under new Order CARDINALACARDINAL , other visits by a legal adviser acting in a professional capacity are also now allowed out of the hearing of a prison officer , provided the subject to be discussed is disclosed to the governor in advance and does not offend against the restrictions on correspondence with legal advisers set out in new LAW ( including the " simultaneous ventilation rule " ) . If the subject to be discussed is not disclosed , the visit will still be allowed but will be in the hearing of an officer .

ORG Under LAW , responsibility for the health of prisoners is placed on the prison medical officer ; he has discretion to call in another medical practitioner .

The prison authorities will not generally allow a convicted prisoner to be examined by an outside doctor ( other than one called in as aforesaid ) unless the prisoner is a party to legal proceedings , in which event Rule CARDINAL ( CARDINAL ) applies . This Rule provides :

" Subject to any directions given in the particular case by the Secretary of ORG , a registered medical practitioner selected by or on behalf of [ a prisoner who is party to any legal proceedings ] shall be afforded reasonable facilities for examining him in connection with the proceedings , and may do so out of hearing but in the sight of an officer . "

ORG An inmate who is aggrieved by a decision concerning his correspondence or visits may complain to the prison governor , ORG or a visiting officer of the Home Secretary or he may petition the Home Secretary himself . A prisoner may ventilate his complaint through any or all of these channels and , if CARDINAL is utilised , in such sequence as he wishes .

As far as ORG is concerned , it may examine the compatibility of the decision complained of with the Rules and the Home Secretary ’s directives . It will draw the governor ’s attention to any irregularity , or report to the Home Secretary ; although its powers are advisory in character , its advice will be implemented save in exceptional circumstances .

Inmates have the right to submit petitions to the ORG Secretary about any matter , for example to seek a permission which the local prison management is not empowered to grant or has refused , or to complain of prison treatment .

On a petition being made by a prisoner , complaining of a decision of the prison authorities concerning his correspondence or visits , the ORG Secretary would , if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities , issue directions to them to secure compliance . Although it is possible for him to depart from the Orders in particular cases , this is likely to occur only rarely , if at all , since their very purpose is to ensure uniformity of practice .

Prior to DATE , directives concerning the submission of petitions were contained in Orders CARDINAL l-CARDINAL . It was , in particular , provided that , with certain exceptions , a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition ( Order CARDINALB CARDINAL ( CARDINAL ) ) .

With effect from DATE , the provisions of LAW ( CARDINAL ) have been relaxed by new Orders CARDINALCCARDINAL and CARDINALClO. A further petition may now be submitted if DATE has elapsed since the submission of the previous petition . Moreover , even though an earlier petition be outstanding , a prisoner may petition forthwith on certain specified matters , including interferences with his correspondence but not restrictions on his visits .

Complaints concerning the control of correspondence or visits may also , on certain conditions , be raised with the Parliamentary Commissioner for ORG ( the ORG ) . However , his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the ORG or the Home Secretary ’s directives ; moreover , the ORG can not grant direct relief since he is limited to reporting the results of his investigation to a Member of ORG , the authority concerned and , in certain circumstances , each ORG of ORG ( sections CARDINAL of LAW ) .

ORG The exercise by the prison authorities of their powers under the Rules to control correspondence and visits is subject to the supervisory control of the LANGUAGE courts by way of proceedings for judicial review . In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to correspond or receive visits ( for example , Rules CARDINAL(A ) CARDINAL and DATE ( CARDINAL ) ; see paragraph CARDINAL , sub - paragraphs ( b ) and ( d ) , above ) , and to ensure that the discretion conferred on the authorities by the Rules is not exercised arbitrarily or unreasonably , in bad faith , for an improper motive or in an ultra vires manner .

The ORG notes in this context that in PERSON v. Honey [ DATE ] CARDINAL All England Law Reports CARDINAL , Lord PERSON pointed out that it was a principle of LANGUAGE law that " a convicted prisoner , in spite of his imprisonment , retains all civil rights which are not taken away expressly or by necessary implication . "


Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 34;Remainder inadmissible;Just satisfaction reserved

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

Since DATE the applicant has suffered from a mental disorder . On several occasions he was placed in GPE no . CARDINAL in GPE for inpatient psychiatric treatment . In DATE he obtained the status of a disabled person . The applicant lived with his mother ; he did not work and received a disability pension .

In DATE the applicant ’s grandmother died . The applicant inherited a flat from her in GPE and a house with a plot of land in the GPE region .

On DATE the applicant was placed in Hospital no . CARDINAL for inpatient treatment .

On DATE the applicant ’s mother lodged an application with ORG of GPE , seeking to deprive the applicant of legal capacity . She claimed that her son was inert and passive , that he rarely left the house , that he spent DATE sitting on a couch , and that sometimes he behaved aggressively . She indicated that her son had recently inherited property from his grandmother ; however , he had not taken the necessary steps to register his property rights . This indicated that he was incapable of leading an independent social life and thus needed a guardian . It appears that the applicant was not formally notified about the proceedings that had been brought in respect of him .

On DATE the judge invited the applicant and his mother to court to discuss the case . However , there is no evidence that the invitation ever reached the applicant . The court also requested the applicant ’s medical records from Hospital no . CARDINAL .

On DATE the judge of ORG of GPE commissioned a psychiatric expert examination of the applicant ’s mental health . The examination was assigned to the doctors of ORG no . CARDINAL , where the applicant had been undergoing treatment . The judge formulated CARDINAL questions to the doctors : firstly , whether the applicant suffered from any mental illness ; and , secondly , whether he was able to understand his actions and control them .

On DATE an expert team from Hospital no . CARDINAL examined the applicant and his medical records . The report prepared by the expert team may be summarised as follows . After graduating from college , the applicant worked for a short time as an interpreter . However , some time later he became aggressive , unsympathetic and secluded , and prone to empty philosophising . He abandoned his job , started attending religious meetings and visiting NORP shrines , lost most of his friends , neglected his personal hygiene and became very negative towards his relatives . He suffered from anorexia and was hospitalised because of this .

In DATE he was placed in a psychiatric hospital for the first time with a diagnosis of “ simple schizophrenia ” . In DATE he was discharged from hospital ; however , DATE he was admitted again because of his aggressive behaviour towards his mother . In DATE he was placed in hospital CARDINAL further times . In DATE he was discharged . However , he “ continued to live in an antisocial way ” . He did not work , loitered in the flat , prohibited his mother from preparing him food or from leaving the flat or moving around , and threatened her . She was so afraid of the applicant that she once spent TIME at friends of hers and had to complain to the police about her son .

The final part of the report concerned the applicant ’s mental condition at the time of his examination . The doctors noted that the applicant ’s social maladjustment and autism had worsened . They noted , inter alia , that “ the applicant did not understand why he had been subjected to a [ forensic ] psychiatric examination ” . The doctors further stated that the applicant ’s “ intellectual and mnemonic abilities were without any impairment ” . However , his behaviour was characterised by several typical features of schizophrenia , such as “ formality of contacts , structural thought disorder ... , lack of judgment , emotional emasculation , coldness , reduced energy potential ” . The expert team concluded that the applicant was suffering from “ simple schizophrenia with a manifest emotional and volitional defect ” and that he could not understand his actions or control them .

On DATE Judge PERSON of ORG held a hearing on the merits of the case . The applicant was neither notified nor present at that hearing . The applicant ’s mother was notified but did not appear . She informed the court that she maintained her initial request and asked the court to examine the case in her absence . The case was examined in the presence of the district prosecutor . A representative of ORG no . CARDINAL was also present . The representative of the hospital , described in the judgment as “ an interested party ” , asked the court to declare the applicant incapable . It appears that the prosecutor did not make any remarks on the substance of the case . The hearing lasted TIME . As a result , the judge declared the applicant legally incapable , referring to the experts’ findings .

Since no appeal was lodged against the judgment of DATE within the DATE time - limit provided by law , the judgment became final on DATE .

On DATE the applicant ’s mother received a copy of the full text of the judgment of DATE . Subsequently , on an unspecified date , she was appointed the applicant ’s guardian and was authorised by law to act on his behalf in all matters .

According to the applicant , he was not sent a copy of the judgment and only became aware of its existence by chance in DATE , when he found a copy of the judgment among his mother ’s papers at home .

On DATE the applicant contacted PERSON , a lawyer with ORG ( “ the lawyer ” ) , and explained the situation . The applicant and the lawyer met for TIME and discussed the case . According to the lawyer , who holds a degree in medicine from ORG , during the meeting the applicant was in an adequate state of mind and fully able to understand complex legal issues and give relevant instructions . On DATE the lawyer helped the applicant draft a request to restore the time - limits for lodging an appeal against the judgment of DATE .

On DATE the applicant was placed in Hospital no . CARDINAL . Admission to hospital was requested by the applicant ’s mother , as his guardian ; in terms of domestic law it was therefore voluntary and did not require approval by a court ( see paragraph CARDINAL below ) . The applicant claimed , however , that he had been confined to hospital against his will .

On DATE , CARDINAL , DATE and DATE the lawyer attempted to meet his client in hospital . The applicant , in turn , requested the hospital administration to allow him to see his lawyer in private . However , PERSON . , the Director of the hospital , refused permission . He referred to the applicant ’s mental condition and the fact that the applicant was legally incapable and therefore could only act through his guardian .

On DATE the lawyer had a telephone conversation with the applicant . Following that conversation the applicant signed a form authorising the lawyer to lodge an application with ORG in connection with the events described above . That form was then transmitted to the lawyer through a relative of another patient in GPE no . CARDINAL .

NORP The lawyer reiterated his request for a meeting . He specified that he was representing the applicant before ORG and enclosed a copy of the power of attorney . However , the hospital administration refused permission on the ground that the applicant did not have legal capacity . The applicant ’s guardian also refused to take any action on the applicant ’s behalf .

From DATE the applicant was prohibited from having any contact with the outside world ; he was not allowed to keep any writing equipment or use a telephone . The applicant ’s lawyer produced a written statement by PERSON , another former patient in Hospital no . CARDINAL . PERSON met the applicant in DATE while PERSON was in the hospital in connection with attempted suicide . PERSON and the applicant shared the same room . In the words of PERSON , the applicant was someone friendly and quiet . However , he was treated with strong medicines , such as PERSON and PERSON . The hospital staff prevented him from meeting his lawyer or his friends . He was not allowed to write letters ; his diary was confiscated . According to the applicant , he once attempted to escape from the hospital , only to be captured by the staff members who secured him to his bunk bed .

On DATE the lawyer complained to the guardianship office of LOC no . CARDINAL of GPE about the actions of the applicant ’s official guardian , namely his mother . He claimed that the applicant had been placed in the hospital against his will and without medical necessity . The lawyer also complained that the hospital administration was preventing him from meeting the applicant .

On DATE the applicant himself wrote a letter in similar terms to the district prosecutor . He indicated , in particular , that he was prevented from meeting his lawyer , that his hospitalisation had not been voluntary , and that his mother had placed him in the hospital in order to appropriate his flat .

On DATE the applicant wrote a letter to the Chief Doctor of Hospital no . CARDINAL , asking for his immediate discharge . He claimed that he needed some specialist dental assistance which could not be provided within the psychiatric hospital . In DATE , the applicant and his lawyer wrote several letters to the guardianship authority , district prosecutor , public health authority , and so on , calling for the applicant ’s immediate discharge from the psychiatric hospital .

On DATE the district prosecutor advised the lawyer that the applicant had been placed in the hospital at the request of his official guardian , and that all questions related to his eventual release should be decided by her .

On DATE the guardianship office informed the lawyer that the actions of the applicant ’s guardian had been lawful . According to the guardianship office , on DATE the applicant was examined by a dentist . As follows from this letter , the representatives of the guardianship office did not meet the applicant and relied solely on information obtained from the hospital and from his guardian DATE the applicant ’s mother .

In a letter of DATE , the lawyer requested the ORG to indicate to the ORG interim measures under LAW . In particular , he requested the ORG to oblige the NORP authorities to grant him access to the applicant with a view to assisting him in the proceedings and preparing his application to ORG .

On DATE the President of the ORG decided not to take any decision under Rule CARDINAL until more information was received . The parties were invited to produce additional information and comments regarding the subject matter of the case .

Based on the information received from the parties , on DATE the President of the ORG decided to indicate to the ORG , under LAW , interim measures desirable in the interests of the proper conduct of the proceedings before ORG . These measures were as follows : the Government was directed to organise , by appropriate means , a meeting between the applicant and his lawyer . That meeting could take place in the presence of the personnel of the hospital where the applicant was detained , but outside their hearing . The lawyer was to be provided with the necessary time and facilities to consult with the applicant and help him in preparing the application before ORG . The Government was also requested not to prevent the lawyer from having such a meeting with his client at regular intervals in future . The lawyer , in turn , was obliged to be cooperative and comply with reasonable requirements of hospital regulations .

However , the applicant ’s lawyer was not given access to the applicant . The Chief Doctor of Hospital no . CARDINAL informed the lawyer that he did not regard the ORG ’s decision on interim measures as binding . Furthermore , the applicant ’s mother objected to the meeting between the applicant and the lawyer .

The applicant ’s lawyer challenged that refusal before GPE Smolninskiy District Court , referring to the interim measure indicated by ORG . On DATE the court upheld his claim , declaring the ban on meetings between the applicant and his lawyer as unlawful .

On DATE the former Representative of GPE at ORG , PERSON , wrote a letter to the President of ORG of GPE , informing him of the interim measures applied by ORG in the present case .

On DATE ORG examined , on the applicant ’s motion , the ORG ’s request under LAW and held that the lawyer should be allowed to meet the applicant .

The hospital and the applicant ’s mother appealed against that decision . On DATE GPE examined their appeal and quashed the lower court ’s judgment of DATE . ORG held , in particular , that ORG had no competence to examine the request lodged by ORG . ORG further noted that the applicant ’s official guardian DATE his mother – had not applied to the court with any requests of this kind . ORG finally held as follows :

“ ... The applicant ’s complaint [ to ORG ] was lodged against GPE ... The request by ORG was addressed to the authorities of GPE . GPE as a special subject of international relations enjoys immunity from foreign jurisdiction ; it is not bound by coercive measures applied by foreign courts and can not be subjected to such measures ... without its consent . The [ domestic ] courts have no right to undertake on behalf of GPE an obligation to comply with the preliminary measures ... This can be decided by the executive ... by way of an administrative decision . ”

On DATE GPE examined the appeal against the judgment of DATE lodged by the Chief Doctor of Hospital no . CARDINAL . ORG held that “ under LAW , the authority of an advocate [ representing the applicant before ORG ] should be formalised in accordance with the legislation of the home country ” . ORG further held that under NORP law the lawyer could not act on behalf of the client in the absence of an agreement between them . However , no such agreement had been concluded between PERSON ( the lawyer ) and the applicant ’s mother – the person who had the right to act on behalf of the applicant in all legal transactions . As a result , ORG concluded that the lawyer had no authority to act on behalf of the applicant , and his complaint should be dismissed . The judgment of DATE by ORG was thus reversed .

On DATE the applicant was discharged from hospital and met with his lawyer .

On DATE the applicant ’s lawyer brought an appeal against the decision of DATE . He also requested the court to extend the time - limit for lodging the appeal , claiming that the applicant had not been aware of the proceedings in which he had been declared incapable . The appeal was lodged through the registry of ORG .

On DATE Judge PERSON of ORG returned the appeal to the applicant ’s lawyer without examination . She indicated that the applicant had no legal capacity to act and , therefore , could only lodge an appeal or any other request through his guardian .

On DATE , after the applicant ’s discharge from the psychiatric hospital , the applicant ’s lawyer appealed against the decision of DATE . By a ruling of CARDINAL DATE , GPE upheld the decision of DATE . ORG held that LAW did not allow for the lodging of applications for restoration of procedural terms by legally incapable persons .

In DATE the applicant ’s lawyer introduced CARDINAL appeals for supervisory review , but to no avail .

According to the applicant ’s lawyer , in DATE the applicant was admitted to Hospital no . CARDINAL again , at the request of his mother .

Under LAW of GPE of DATE , any individual aged DATE or over has , as a rule , full legal capacity ( дееспособность ) , which is defined as “ the ability to acquire and enjoy civil rights , create and fulfil civil obligations by his own acts ” . Under LAW legal capacity can be limited , but only on the grounds defined by law and within a procedure prescribed by law .

Under LAW , a person who can not understand or control his or her actions as a result of a mental illness may be declared legally incapable by the court and placed in the care of a guardian ( опека ) . All legal transactions on behalf of the incapacitated person are concluded by his guardian . The incapacitated person can be declared fully capable if the grounds on which he or she was declared incapable cease to exist .

DATE of the Civil Code provides for partial limitation of legal capacity . If a person ’s addiction to alcohol or drugs is creating serious financial difficulties for his family , he can be declared partially incapable . That means that he is unable to conclude large - scale transactions . He can , however , dispose of his salary or pension and make small transactions , under the control of his guardian .

Article CARDINAL § CARDINAL of the Code of Civil Procedure of DATE establishes that a civil claim lodged by a legally incapable person should be returned to him without examination .

Article CARDINAL of the same Code establishes the procedure for declaring a person incapable . A request for incapacitation of a mentally ill person can be brought before a first - instance court by a family member of the person concerned . On receipt of the request , the judge must commission a forensic psychiatric examination of the person concerned .

LAW provides that the incapacitation request should be examined in the presence of the person concerned , the plaintiff , the prosecutor and a representative of the guardianship office ( орган опеки и попечительства ) . The person whose legal capacity is being examined by the court is to be summoned to the court hearing , unless his state of health prohibits him from attending it .

Article CARDINAL of the Code provides that full legal capacity can be restored by the court at the request of the guardian , a close relative , the guardianship office or the psychiatric hospital , but not of the person declared incapable himself .

LAW of DATE , as amended ( “ the LAW ” ) , provides that any recourse to psychiatric aid should be voluntary . However , a person declared fully incapable may be subjected to psychiatric treatment at the request or with the consent of his official guardian ( section QUANTITY ) .

Section CARDINAL(CARDINAL ) of the LAW provides that the rights and freedoms of persons with mental illnesses can not be limited solely on the ground of their diagnosis , or the fact that they have been subjected to treatment in a psychiatric hospital .

Under LAW , a patient in a psychiatric hospital can have a legal representative . However , pursuant to point CARDINAL of section CARDINAL , the interests of a person declared fully incapable are represented by his official guardian .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW ( “ FAC for hospitalisation ” ) provides that a person declared incapable can be subjected to hospitalisation in a psychiatric hospital at the request of his guardian . This hospitalisation is regarded as voluntary and does not require approval by the court , as opposed to non - voluntary hospitalisation ( sections DATE and CARDINAL of the Act ) .

Section CARDINAL(CARDINAL ) of the LAW establishes the list of rights of a patient in a psychiatric hospital . In particular , the patient has the right to communicate with his lawyer without censorship . However , under section CARDINAL(CARDINAL ) the doctor may limit the applicant ’s rights to correspond with other persons , have telephone conversations and meet visitors .

Section CARDINAL of the LAW provides that ORG actions can be appealed against before the court .

On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL on principles concerning the legal protection of incapable adults . The relevant provisions read as follows .

“ CARDINAL . The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient , in scope or flexibility , to enable a suitable legal response to be made to different degrees of incapacity and various situations .

The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned .

“ CARDINAL . NORP The legislative framework should , so far as possible , recognise that different degrees of incapacity may exist and that incapacity may vary from time to time . Accordingly , a measure of protection should not result automatically in a complete removal of legal capacity . However , a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned .

NORP In particular , a measure of protection should not automatically deprive the person concerned of the right to vote , or to make a will , or to consent or refuse consent to any intervention in the health field , or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so .

“ CARDINAL . Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned .

NORP The measure of protection should interfere with the legal capacity , rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention . ”

“ The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity . ”

“ CARDINAL . Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews .

There should be adequate rights of appeal . ”