Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

During events on DATE the applicant ’s father was murdered . By a decision of CARDINAL DATE the GPE ORG convicted of murder CARDINAL individuals , namely , F.O.D.K , ORG , ORG and PERSON , all of whom had dual NORP / Romanian citizenship , and ordered the joint payment of damages of MONEY ( ROL ) to the applicant and other civil parties . The decision became final on DATE by a decision of ORG .

On DATE the applicant started enforcement proceedings through a local bailiff .

In DATE , during the enforcement proceedings , the authorities found that CARDINAL of the debtors ( GPE , GPE and GPE ) had left GPE and established their residence in GPE .

On DATE ORG within the NORP Ministry of Justice advised the applicant to lodge , pursuant to LAW ( b ) of the Agreement of DATE between GPE of GPE and GPE regarding judicial assistance in civil , family and criminal trials ( hereinafter “ the LAW ” ) , a request for international judicial assistance with the firstinstance court that had ruled on the matter , to be forwarded through ORG , which would also provide a translation of the request and the accompanying documents .

On DATE the applicant made an exequatur request and , pursuant to LAW ( b ) of the LAW , lodged it with ORG . He also requested an update of the amount of damages and its equivalent in CARDINAL .

On DATE the ORG provided the update requested . Consequently , the applicant filed another exequatur request .

On DATE ORG issued the exequatur requested in relation to the final decision of DATE with respect to GPE , GPE and GPE and sent it to ORG . However , since authorised translations of all the accompanying documents were not enclosed with the request , in accordance with LAW , the ORG sent it back to GPE Court requesting it to provide the translations at the plaintiff ’s expense .

On DATE ORG sent the certified translations into the NORP language of the required documents to the Minister of ORG .

On DATE the Minister of ORG sent to its NORP counterpart the exequatur request relating to the final court decision of DATE .

NORP In reply to requests by the applicant for information with respect to the state of the proceedings , ORG informed him on DATE that there had been no official answer from the NORP Authorities but that they would pursue their contact with the NORP authorities and keep him informed accordingly .

In DATE and DATE the applicant renewed his request for information regarding the state of the proceedings .

On DATE ORG informed the applicant that they had requested information from their NORP counterpart .

On DATE the NORP Ministry of Justice informed the ORG that no exequatur request relating to a court decision from GPE had been registered in their data base .

Following a new request from the applicant regarding the state of the proceedings , ORG communicated that information to the applicant by a letter of DATE .

On DATE ORG informed the applicant that he should lodge a new application .

On DATE the applicant again requested an exequatur for the judgment of DATE from GPE Court .

On DATE ORG issued a new exequatur request based on LAW DATE on ORG , ratified by GPE in DATE , and sent it to ORG .

On DATE ORG informed the GPE ORG that GPE had not ratified the said ORG .

The applicant renewed his request to ORG of ORG for information .

On DATE ORG issued the exequatur request and sent it to ORG , which on DATE sent it back to ORG as incomplete . The Romanian Ministry of Justice forwarded the completed file to the NORP authorities on DATE .

NORP Throughout DATE and DATE the applicant submitted to ORG repeated requests for information as to the state of the proceedings .

On DATE the NORP authorities informed the NORP party that they had received the request and the accompanying documents ; however the documents did not mention the addresses of the debtors in GPE and for this reason they were not able to establish which authority was competent to deal with the request .

ORG provided this information on DATE and DATE respectively .

On DATE the applicant requested the Bucharest County Court to attach the decision of DATE ( stating the updated amount of the debt ) to the file in the exequatur proceedings .

On DATE ORG asked the applicant to itemise his additional expenses .

On DATE ORG confirmed that the request for enforcement against PERSON had been forwarded to the competent court . However , they were not able to examine the enforcement request against PERSON as the file was not complete .

On DATE the NORP Ministry of ORG communicated to the NORP party the court decision of DATE regarding the updated amount for damages , as well as the note on the additional expenses .

On DATE the NORP party informed them that the NORP court decision of DATE had been declared enforceable against GPE and a bailiff had been assigned .

On DATE ORG was informed by its counterpart that with respect to the debtor ORG the court dealing with the application required additional information from GPE . This information was forwarded by ORG of ORG on DATE . However , meanwhile , on DATE the debtor ORG died .

On DATE the NORP ORG informed the NORP party that with respect to PERSON the firstinstance court had declared the decision enforceable on DATE . The appellate court had set aside the order on enforceability pending submission by the NORP firstinstance court of a certificate required by LAW ( ORG ) CARDINAL on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters . It appears that meanwhile the said document had been forwarded by the applicant on CARDINAL DATE .

The provisions of the relevant legislation read as follows :

“ CARDINAL . In providing the legal assistance , the judicial institutions of DATE notify each other through their central bodies , to the extent that LAW has not established otherwise .

Other institutions of the CARDINAL Contracting Parties which have competence in matters of civil or family law communicate with each other or with the judicial institutions through ORG , to the extent that this LAW has not established otherwise . ”

“ Contracting Parties shall provide mutual legal assistance in the performance of procedural tasks such as preparing , sending and delivery of documents , sending or delivery of material evidence , conducting local surveys and research , and questioning the parties , defendants , witnesses , experts and other persons performing searches and seizures . ”

Article DATE Content of the request for legal assistance

“ An application for legal assistance shall contain the following data :

a ) the name of the originating application ;

b ) the name of the institution addressed ;

c ) the case in which legal assistance is requested ;

d ) the full name , address and citizenship status of the parties , accused , indicted or convicted in criminal cases and , as far as possible , the place and date of birth of the accused or defendants , and the names of their parents ;

d ) the name and address of their representatives ;

e ) necessary data as requested , subject to criminal cases , and a description of the facts . ”

“ Both Contracting Parties shall recognise and approve the enforcement , within their territory : ( ... )

b ) final judgments given in the other ORG after entry into force of this LAW , in criminal cases , regarding the obligation to compensate the victim for damage caused . ”

“ CARDINAL . The granting of enforcement falls within the jurisdiction of the ORG in whose territory the enforcement is to be executed .

An enforcement request is filed with the court of first instance which ruled in the case . This request will be forwarded to the court competent to grant enforcement . The request may be submitted directly to the latter court .

The application shall be accompanied by a certified translation into the language of ORG on whose territory the enforcement occurs .

The conditions of the enforcement request are determined by the law of the Contracting Party in whose territory the enforcement occurs . “

“ CARDINAL . To a declaration of enforcement must be attached :

a ) the full text of the decision and proof that the decision has become final and enforceable , unless that is clear from the above ;

b ) the original documents , or certified copies of such documents , showing that any person concerned by a decision not to take part in the proceedings has been served with the summons at least once , on time and in due form ;

c ) certified translations of documents specified in paragraphs ( a ) and ( b ) . ”

“ CARDINAL . The enforcement approval procedure and the procedure for the enforcement are determined by the law of ORG in whose territory the enforcement occurs . ”

“ ( ... ) CARDINAL ) The provisions of this PERSON shall not affect bilateral or multilateral conventions to which GPE is or will become a party , but shall cover situations not covered by them . ”

“ ( CARDINAL ) ORG is the central authority through which the NORP judicial authorities communicate documents abroad .

( CARDINAL ) Upon receipt of documents from the NORP judicial authority , after international regularity control , ORG will be able to send them , as appropriate , depending on the existence and according to the provisions of international conventions

a ) NORP by post to the named addressee ;

b ) to the competent central authority of the recipient ORG , or

c ) to the NORP diplomatic mission or consular authorities of the recipient ORG , through ORG . ”

“ ( ... ) CARDINAL ) The application form shall be accompanied by the proof of communication , which will include the following :

a ) the name of the requesting judicial authority ;

b ) the documents to be communicated ;

c ) the name and address of the recipient ;

d ) the name of the recipient judicial authority ;

e ) the name and status of the person who receives the documents ( the relationship of the consignee to the addressee , for individuals , , or function , for legal entities ) ;

f ) the signature of the addressee ( a stamp in the case of legal persons ) ;

g ) the documents being communicated ;

h ) reasons for non - communication ( recipient ’s refusal , address change etc . ) ;

i ) the agent ’s signature and stamp relating to the requisite judicial procedure . ”

“ Unless the international ORG provides otherwise , the application and supporting documents will be translated into the language of the recipient ORG as follows :

a ) the application for international legal assistance – by ORG ;

b ) Appendices – by the NORP judicial authorities at the expense of the interested parties , except for cases in which parties are exempted from paying court fees ; ” ( ... )

“ a ) when communicated by post , directly to the recipient – the confirmation of receipt ;

b ) communication by the central competent authority of the recipient ORG or of the NORP diplomatic mission or consulate in that State – the form stipulated in LAW ) . ”

“ Article CARDINAL ( CARDINAL ) In the case of judgments rendered in GPE and for which is sought recognition or enforceability in another ORG member ORG , the power to issue , according to LAW no . CARDINAL/CARDINAL , the certificate provided for in Annex V of the regulation lies with the first court . ”

THE LAW

The applicant complained that lack of diligence on the part of the competent NORP authorities in assisting him in the enforcement procedure of a judgment in his favour had infringed his rights guaranteed by LAW and also his right to property as provided by LAW CARDINAL to the Convention . Insofar as relevant , these provisions read as follows :

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal ... ”

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .

The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

ORG considered the application incompatible ratione personae since the alleged violations were not imputable to the NORP authorities because the responsibility for enforcing the court decision lay with the NORP authorities .

According to the ORG , the NORP minister had complied with all the obligations arising from the bilateral agreement by forwarding the exequatur request to the NORP authorities . They further argued that the applicant had not been obliged to file his request via the NORP authorities , such a possibility being optional . ORG referred to the admissibility decision of DATE in the case of ORG v. GPE and GPE , where ORG had dismissed a similar complaint as incompatible ratione personae since the applicant had failed to file his request directly with the NORP authorities in accordance with the applicable law .

The applicant contested any similarity to the case of ORG v. GPE and GPE ; in that case , at the request of the NORP authorities , the applicant should have filed the exequatur request directly with the competent NORP court , whereas in his own case the NORP Minister of ORG had suggested he contact the competent NORP court in order to file an exequatur request and had not considered the alternative of a direct application to the competent NORP court , which , according to the applicant , was in any event not feasible since the ORG addresses were unknown .

The ORG observes that according to the provisions of ORG CARDINAL and CARDINAL of the bilateral agreement the role of the NORP Minister of ORG is that of an intermediate authority whose role is to facilitate the enforcement process ( see paragraph CARDINAL ( A ) above ) . ORG can not reasonably claim that the NORP authorities alone were responsible for the enforcement of the domestic court decision and that the role of the NORP ministry was merely to forward the exequatur request to their counterparts . Further , ORG observes that LAW of the LAW provides for the possibility of filing an exequatur request directly with the competent court . However , in the present case the ORG notes that the addresses of the debtors , which determine the competent court , were not known ; it was only in DATE the NORP authorities acknowledged the addresses ( see paragraph CARDINAL above ) . In addition , the ORG observes that ORG of ORG informed the applicant that the procedure to be followed was through the Minister of ORG as an intermediate authority ( see paragraph CARDINAL above ) .

Therefore , in the light of the above , the ORG concludes that the application is not incompatible ratione personae and that the ORG ’s objection should be dismissed .

The ORG also notes that the application is not manifestly illfounded within the meaning of LAW § CARDINAL of the Convention . It further notes that it is not inadmissible on any other grounds . It must therefore be declared admissible .

Merits

The Government argued that the authorities had fulfilled their obligations arising from the bilateral Treaty by forwarding the exequatur request to the NORP authorities . They argued that the provisions of the LAW did not impose any other obligations on the NORP authorities and it there was no obligation under LAW to monitor the outcome of the applicant ’s request . The fact that the applicant ’s exequatur request had not been registered in the data base of the NORP authorities was not imputable to the NORP authorities . All the documents of the Minister of ORG had been forwarded through ORG and there was no obligation for the central body receiving the documents to confirm that fact . With respect to the content of the exequatur request forwarded to the NORP authorities , the Government noted that the large number of requests by the applicant regarding the enclosures and the ORG addresses were not were not imputable to the fault of the NORP authorities , the sole responsibility of the Minister of ORG being to forward the documents , notwithstanding the fact that had been extensive correspondence between them and their NORP counterparts concerning the state of the proceedings . Moreover , the Government considered that PERSON No . CARDINAL/CARDINAL regarding international judiciary assistance in civil and commercial matters was not applicable in the present case since it did not specifically refer to the exequatur procedure ; hence the provision which provided for confirmation of the transmission of documents did not apply to the exequatur procedure .

The applicant contested these arguments . He argued that the NORP authorities had failed to fulfil their obligation under LAW and the above - mentioned PERSON No . CARDINAL/CARDINAL to assist him in the execution of a domestic court decision . He considered that the NORP authorities had not informed him very clearly about the procedure to follow in order to obtain the enforcement of the court decision in his favour and had not acted with diligence and celerity in order to ensure the effective exchange of information and correspondence between the intermediary institution and themselves .

The ORG reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “ trial ” for the purposes of Article CARDINAL of the Convention ( GPE v. GPE , DATE , § DATE , Reports of Judgments and Decisions CARDINAL ) . However , the right of “ access to court ” does not impose an obligation on a ORG to execute every judgment of a civil character without having regard to the particular circumstances of the case ( PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ) .

The ORG has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay ( PERSON v. GPE , no . GPE , § CARDINAL , DATE ) . When the authorities are obliged to act in order to enforce a judgment and they fail to do so , their inactivity can engage the ORG ’s responsibility on the ground of LAW ( NORP v. GPE , DATE , § DATE , Series A no . CARDINALC ) . It is for each ORG to equip itself with legal instruments which are adequate and sufficient to ensure the fulfilment of positive obligations imposed upon the ORG ( NORP v. GPE , no . GPE , § CARDINAL , DATE ) . The ORG ’s task is to examine whether the measures applied by the NORP authorities in the present case were adequate and sufficient . In cases such as the present one , which necessitate action by a debtor who is a private person , the ORG , as the agent of public authority , has to act diligently in order to assist a creditor in the execution of a judgment ( LOC v. GPE , no . CARDINAL , § MONEY , DATE ) .

The ORG notes that in the present case the applicant obtained a final court decision on DATE ordering private individuals to pay him damages for the murder of his father . On DATE the applicant started the enforcement procedure before the NORP authorities . However , it was only in the course of DATE that the NORP authorities completed the file submitted to the NORP authorities in the exequatur procedure ( see paragraphs TIME above ) .

The ORG further notes that the enforcement proceedings against CARDINAL of the debtors are still pending before the NORP authorities . Having regard to the fact that , in accordance with the provisions of LAW of LAW ( see paragraph CARDINAL ( A ) ) , it is the law of the ORG of the debtor which governs the enforcement procedure , ORG will only examine whether the NORP authorities acted diligently in order to assist the applicant in the execution of the judgment of DATE as regards the obligations under the aforesaid LAW and the pertinent laws in force .

The ORG notes repeated delays in the transmission of correspondence imputable to the NORP authorities , as a result of which the proceedings lasted DATE . It was only after repeated requests from the applicant that ORG inquired about the fate of the exequatur request and were thus informed that it had never reached the NORP authorities ( see paragraphs QUANTITY above ) .

The ORG further notes that , notwithstanding the detailed provisions of LAW no . CARDINAL/CARDINAL as to the procedure , form and content of such a request ( see relevant domestic and international law , paragraph CARDINAL above ) there were repeated shortcomings which led to delays in the transmission of documents between the domestic authorities and to the NORP authorities ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE above ) .

The ORG has dealt with cases raising issues similar to the ones in the present case and found violations of LAW ( see , among others , PERSON GPE and GPE , no . MONEY , DATE ; PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; and ORG v. GPE , no . CARDINAL/CARDINAL , DATE ) .

In the light of the above , the ORG considers that the respondent Government has not submitted any fact or argument leading to a different conclusion in the present case .

The foregoing considerations are sufficient to enable the ORG to conclude that in the present case ORG , through its specialised bodies , did not engage all the necessary efforts to assist the applicant in the expeditious enforcement of a court decision in his favour .

There has accordingly been a violation of LAW .

The applicant complained that the non - enforcement of the impugned judgment breached his right to property as provided by LAW CARDINAL .

However , in view of its previous findings ( see paragraphs CARDINAL above ) , the ORG considers that it is not necessary to examine this complaint separately .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant claimed CARDINAL Euros ( ORG ) in respect of pecuniary damage , representing the value of the debt , and ORG CARDINAL representing trial fees , taking account of the update of the damage amount up to DATE . He also claimed ORG CARDINAL,CARDINAL in respect of nonpecuniary damage .

The ORG reiterates that , where it has found a breach of the Convention in a judgment , the respondent ORG is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( see GPE v. GPE ( just satisfaction ) [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINAL-XI ) .

As regards pecuniary damage , the ORG notes that the judgment in favour of the applicant has not been enforced . However , considering the particular circumstances of the case notably that the enforcement proceedings are still pending before the NORP authorities and the fact that the present application is directed only against GPE , the ORG will not make an award under this head .

The ORG further considers that the applicant has suffered nonpecuniary damage on account of the frustration caused by the length of the enforcement proceedings and the fact that the NORP authorities have not diligently assisted him in his efforts to enforce the decision of DATE , and that this damage is not sufficiently compensated by the finding of a violation .

NORP Under these circumstances , having regard to all the information at its disposal and making an assessment on an equitable basis , as required by LAW , the ORG awards the applicant ORG CARDINAL in respect of non - pecuniary damage .

The applicant also claimed ORG CARDINAL for the costs and expenses incurred in the proceedings in the domestic courts and before this ORG , representing postal expenses , translations , experts’ taxes , stamp duties and travel expenses . He submitted invoices .

According to the ORG ’s case - law , an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum . In the present case , regard being had to the information in its possession and to the above criteria , the ORG considers it reasonable to award the sum of ORG CARDINAL covering the costs under all heads .

The ORG considers it appropriate that the default interest should be based on the marginal lending rate of ORG , to which should be added CARDINAL percentage points .


Violation of Art. 14+P1-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The first applicant , Mr PERSON , was born on DATE in LANGUAGE , in the Kazakh Soviet Socialist Republic ( now GPE ) . His brother , the second applicant , PERSON , was also born there on DATE . In DATE the CARDINAL moved to GPE , GPE , with their mother , PERSON , a NORP national . In DATE their mother divorced their father , Mr PERSON , also a NORP national . The whereabouts of the latter remain unclear ; it appears that he might have settled in another country , probably GPE . It also seems that the applicants have not kept any contact with their father since the divorce .

On DATE the ORG mother married a NORP national . In DATE the family settled in GPE , GPE . The applicants’ mother was then granted a permanent residence permit on the basis of her marriage to a NORP national and the applicants were entitled to reside in GPE on the basis of their mother ’s permit .

In DATE the applicants enrolled in a NORP primary school , and later in secondary schools . Both of them apparently speak fluent NORP .

Their mother has been out of work since DATE . Her husband owned a small Internet café business , which was apparently shut down by the authorities in DATE .

On DATE Mr PERSON turned DATE , and accordingly had to obtain an independent permit in order to continue residing in GPE lawfully . In DATE he contacted the immigration authorities and was informed that , to obtain a permanent residence permit , he first had to leave GPE , obtain a special visa from a NORP embassy abroad , return to the country and apply for a temporary residence permit ; only then could he apply for a permanent residence permit .

On DATE the consular department of ORG informed PERSON that it would not insist on his leaving the country to obtain a special visa and that he could get one in GPE . The applicant then applied for a permanent residence permit . However , as he was unable to raise the money needed to pay the requisite fees ( amounting in total to slightly over MONEY ( ORG ) ) , the immigration authorities returned his application on DATE without considering it .

NORP In DATE both applicants , asserting that they had no property or income , asked ORG , established by the President of the Republic , to waive the fees in respect of both of them . On DATE the Commission rejected their requests , stating that their debts did not appear to be uncollectible .

In the meantime , on DATE and DATE , the immigration authorities informed the applicants that they had been granted permanent residence permits and invited them to collect them . On CARDINAL DATE the applicants paid the requisite fees and obtained documents certifying that they had permanent residence permits . Mr PERSON paid a total amount of ORG and PERSON a total amount of BGN CARDINAL,CARDINAL.CARDINAL . They managed to raise the money by taking out a bank loan .

On DATE , when Mr PERSON was in DATE of his secondary education , the head of ORG of ORG wrote to the head teacher of his school , inquiring whether the applicant had paid the school fees which he owed as an alien without a permanent residence permit and , if not , whether any measures had been taken to collect them . DATE , on DATE , ORG in GPE held a meeting with the head teacher . At that meeting , attended also by representatives of the immigration authorities , a discussion took place as to whether steps should be taken to enforce section CARDINAL ) of the additional provisions of the DATE LAW ( see paragraph CARDINAL below ) in respect of the applicant .

On DATE the head teacher ordered the applicant to pay MONEY ( ORG ) in fees , failing which he would be barred from attending classes and would not be issued with a certificate for having completed DATE . She relied on a decision of the Minister of Education of DATE laying down the fees payable by aliens schooled in NORP educational establishments under the above - mentioned section CARDINAL(CARDINAL ) .

The applicant sought judicial review of the head teacher ’s order . On DATE the ORG partly quashed and partly upheld the order . It found that there was no indication that the applicant had a permanent residence permit . He could therefore pursue his studies only if he paid the requisite fees . However , the fact that he had not paid them did not mean that he should not be issued with a certificate for having completed DATE , given that the amount could still be recovered from him . That part of the order was therefore unlawful .

Both the applicant and the head teacher appealed . On DATE ORG upheld the lower court ’s judgment ( реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , V о. ) . It fully agreed with its reasoning , and added that the fact that in the meantime the first applicant had been granted a permanent residence permit ( see paragraph CARDINAL above ) meant solely that he could attend a NORP school free of charge in the future . However , as at the relevant time he had not had permanent resident status , he had been obliged to pay the requisite fees . Concerning the issuance of a certificate for completion of the corresponding school year , the lower court ’s ruling had been correct , as payment of the fees was a precondition for attending classes but failure to pay could not serve as grounds for refusing to award a certificate if the individual concerned had already completed DATE .

NORP Apparently , the applicant ’s school did not in practice prevent him from attending classes , but the issuance of his secondary school diploma was delayed by DATE , which in turn delayed his enrolment in university .

Separately , Mr PERSON sought review of the Minister ’s fee - setting decision of DATE ( see paragraph CARDINAL above ) . He argued , inter alia , that it was discriminatory to require aliens to pay fees to attend NORP schools .

On DATE a CARDINAL - member panel of ORG dismissed the application ( реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , V о. ) . It found , inter alia , that privileges granted on the basis of nationality were commonplace in many countries . Moreover , LAW did not expressly prohibit discrimination on such grounds . If envisaged by a statute or an international treaty , the differential treatment of individuals on the basis of their nationality did not amount to discrimination . Moreover , aliens having permanent residence permits did not have to pay school fees . However , the applicant had not shown that he had such a permit .

On an appeal by the applicant , a CARDINAL - member panel of ORG upheld the lower court ’s judgment on DATE ( реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , петчленен св ) , fully concurring with its reasoning .

On DATE , when PERSON was in DATE of his secondary education , the head teacher of his school ordered him to pay ORG CARDINAL in fees , failing which he would be barred from attending classes and would not be issued with a certificate for having completed DATE .

The applicant sought judicial review of this order , arguing , inter alia , that it infringed his rights under the Convention . On DATE ORG dismissed his application . It found no indication that the applicant had a permanent residence permit or that a procedure for obtaining such a permit was under way . He could therefore pursue his studies only if he paid the requisite fees . This did not infringe his right to education , as aliens could attend NORP schools provided they paid the requisite fees .

The applicant appealed . On DATE ORG upheld the lower court ’s judgment ( реш. № DATE от CARDINAL декември DATE г. по адм. д. № DATE г. , PERSON , V о. ) . It noted that , since the applicant had in the meantime been granted a permanent residence permit ( see paragraph CARDINAL above ) , he could attend a NORP school free of charge in the future . However , as at the relevant time he had not had permanent resident status , he had been obliged to pay the requisite fees .

On DATE the head teacher of the applicant ’s school invited him to pay ORG CARDINAL in respect of his schooling during the DATE and the same amount in respect of his schooling during the DATE .

It seems that the applicant was in practice not barred from attending classes throughout DATE . He submitted that he had been prevented from doing so for certain periods of time , but the court examining a civil claim by his school against him ( see paragraph CARDINAL below ) found , after reviewing the available evidence in this respect , that he had attended school without interruption during that period .

On DATE the applicant ’s school brought a claim against him , seeking payment of the fees due . In a judgment of DATE , ORG allowed the claim and ordered the applicant to pay his school LAW plus interest . It found that the applicant owed this amount because at the relevant time he had not had a permanent residence permit entitling him to be schooled free of charge . Following an appeal by the applicant , on DATE the ORG quashed the lower court ’s judgment and dismissed the claim . The school appealed on points of law . On DATE ORG accepted the appeal for examination , and in a judgment of DATE ( реш. № CARDINAL от CARDINAL април DATE г. по гр. д. № DATE г. , ORG , ORG г. о. ) , quashed ORG judgment and allowed the claim , ordering the applicant to pay the school the equivalent of ORG CARDINAL plus interest ( the total sum came to ORG CARDINAL,CARDINAL.CARDINAL ) , and ORG CARDINAL for costs . It observed , inter alia , that the requirement for certain categories of aliens to pay school fees stemmed directly from the applicable law .

The relevant provisions of the DATE LAW read as follows :

“ Aliens residing in GPE shall have all rights and obligations flowing from this LAW except those rights and obligations in respect of which the LAW and the laws require NORP nationality . ”

“ CARDINAL . Everyone shall have the right to education .

DATE School education up to DATE shall be compulsory .

Primary and secondary education in ORG and municipal schools shall be free of charge . Education in higher educational establishments run by the ORG shall be free of charge under the conditions set out in the law . ... ”

Under section CARDINAL of the DATE LAW ( ORG за народната просвета ) , education in ORG and municipal schools is free of charge . Section PERSON ) of the additional provisions of the LAW allows all aliens to enrol in NORP schools . Their education is also free of charge if they : ( a ) have a permanent residence permit ( section CARDINAL(CARDINAL ) , as originally enacted in DATE ) ; ( b ) have been enrolled following a decision of ORG or under intergovernmental agreements so providing ( the same provision , as amended in DATE ) ; or ( c ) are of compulsory school age ( under CARDINAL ) , and their parents work in GPE and are nationals either of a member State of ORG or ORG , or of GPE ( the same provision , as amended in DATE ; the amendment was intended to implement in NORP law the provisions of ORG CARDINAL/CARDINAL/EEC of DATE on the education of the children of migrant workers , and came into force on DATE of GPE ’s accession to ORG , namely DATE ) . Aliens who do not fall into any of these categories must pay fees in amounts fixed by the Minister of ORG . The proceeds from these fees are to be used exclusively for the needs of the educational establishments where the persons concerned are being schooled ( section CARDINAL(CARDINAL ) , as amended in DATE ) .

The relevant parts of ORG CARDINAL § CARDINAL and CARDINAL § QUANTITY of the DATE LAW on the Rights of the Child ( ratified by GPE on DATE ) read as follows :

“ GPE Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind , irrespective of the child ’s or his or her parent ’s or legal guardian ’s race , colour , sex , language , religion , political or other opinion , national , ethnic or social origin , property , disability , birth or other status . ”

“ GPE Parties recognise the right of the child to education , and with a view to achieving this right progressively and on the basis of equal opportunity , they shall , in particular :

( a ) Make primary education compulsory and available free to all ;

( b ) Encourage the development of different forms of secondary education , including general and vocational education , make them available and accessible to every child , and take appropriate measures such as the introduction of free education and offering financial assistance in case of need ;

( c ) Make higher education accessible to all on the basis of capacity by every appropriate means ;

Article CARDINAL of LAW ( ratified by GPE on DATE ) reads as follows :

“ CARDINAL . GPE Parties to the present LAW recognise the right of everyone to education . They agree that education shall be directed to the full development of the human personality and the sense of its dignity , and shall strengthen the respect for human rights and fundamental freedoms . They further agree that education shall enable all persons to participate effectively in a free society , promote understanding , tolerance and friendship among all nations and all racial , ethnic or religious groups , and further the activities of ORG for the maintenance of peace .

The GPE Parties to the present LAW recognise that , with a view to achieving the full realisation of this right :

( a ) Primary education shall be compulsory and available free to all ;

( b ) Secondary education in its different forms , including technical and vocational secondary education , shall be made generally available and accessible to all by every appropriate means , and in particular by the progressive introduction of free education ;

( c ) NORP Higher education shall be made equally accessible to all , on the basis of capacity , by every appropriate means , and in particular by the progressive introduction of free education ;

( d ) ORG education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education ;

( e ) The development of a system of schools at all levels shall be actively pursued , an adequate fellowship system shall be established , and the material conditions of teaching staff shall be continuously improved .

Article CARDINAL of the revised NORP Social Charter ( which GPE ratified on DATE , accepting sixtytwo of its ninetyeight paragraphs , including LAW below ) reads , in its relevant parts , as follows :

“ With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities , the Parties undertake , either directly or in cooperation with public and private organisations , to take all appropriate and necessary measures designed :

NORP to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools . ”

On the basis of the materials available to the ORG in respect of twentysix member ORG , it appears that in MONEY GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE ) , primary and secondary education is free of charge and accessible to all persons living or residing in the country regardless of their immigration status or that of their parents . Certain categories of aliens are required to pay fees for their primary and secondary schooling in GPE , and only for their upper secondary schooling in GPE , GPE and GPE . In GPE ( GPE , GPE , GPE , GPE and GPE ) , certain non - nationals may experience difficulties in enrolling in schools because of their irregular status .

The length of compulsory education varies between member GPE , from DATE at the bottom end of the spectrum to DATE at the top end . In GPE compulsory schooling lasts for DATE , in CARDINAL States it lasts for DATE , and in five GPE it lasts for DATE . However , it is possible to say that in the great majority of the twenty - six States surveyed , compulsory education encompasses primary and lower secondary education , with the pupil usually finishing compulsory education aged DATE . This is generally the case for the first CARDINAL groups , which together comprise MONEY . DATE differs in each State depending on what age compulsory education begins rather than ends . Upper secondary education is compulsory only in a minority of the GPE surveyed ( GPE , GPE , GPE , “ the former GPE ” and GPE ) .

The Spanish Constitutional Court has dealt with the issue of the right to post - compulsory education for non - resident aliens . A NORP statute governing the rights and freedoms of aliens and their social integration excluded non - resident aliens from the right to post - compulsory education . ORG , in judgment no . CARDINAL/CARDINAL of DATE , declared that exclusion unconstitutional since it prevented undocumented or non - resident minors from having access to post - compulsory education . The court held that whether or not the minors were lawfully resident was not a criterion for granting the right to post - compulsory education , which was part of the right to education protected by LAW . It observed that the right to education was not limited to basic education and that it also applied to subsequent , post - compulsory education . The court referred to LAW and to the fact that , in accordance with LAW , the former applied ratione personae to any “ person ” , including non - resident or illegal aliens .

In DATE , in the case of PERSON v. PERSON ( CARDINAL GPE CARDINAL ) , in which immigrant children in GPE complained that they had been deprived of the right to free education on account of their undocumented status , ORG of GPE held , by CARDINAL votes to CARDINAL , that the requirement for illegal aliens – as opposed to nationals and lawfully resident aliens – to pay school fees deprived them of the equal protection of the laws , contrary to LAW to LAW .

In Resolution CARDINAL ( DATE ) , adopted on DATE and entitled “ Human rights of irregular migrants ” , ORG of ORG expressed the view that “ all children have a right to education , extending to primary school and secondary school levels , in those countries where such schooling is compulsory . Education should reflect their culture and language and they should be entitled to recognition , including through certification , of the standards achieved ” ( point CARDINAL ) .

Data published by ORG shows that in DATE there were CARDINAL immigrants in GPE , accounting for PERCENT of the population . According to the same source , the DATE rate of change of the migrant stock in GPE DATE was PERCENT .

Data published by ORG show that in DATE in GPE there were CARDINAL aliens with permanent residence permits . According to the same source , the number of aliens apprehended as illegally present in the country was as follows : CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE .

According to data published by ORG , the number of students in upper secondary education during the period CARDINAL was as follows : CARDINAL during the DATE ; CARDINAL during the DATE ; CARDINAL during the DATE ; CARDINAL during the DATE ; CARDINAL during DATE ; CARDINAL during the DATE ; and CARDINAL during the DATE . The vast majority of them ( all but CARDINAL a year ) were enrolled in public schools . No data appear to be available as to how many of those students were not NORP nationals or as to their immigration status . By contrast , data exist on the nationality of students in higher education establishments ( universities and equivalent ) . The number of NORP and foreign students in such establishments during the period CARDINAL/CARDINAL were as follows : CARDINAL NORP and CARDINAL foreigners during the DATE ; CARDINAL NORP and QUANTITY foreigners during DATE ; CARDINAL NORP and CARDINAL foreigners during the DATE ; CARDINAL NORP and CARDINAL foreigners during the DATE ; CARDINAL NORP and CARDINAL foreigners during the DATE ; CARDINAL NORP and CARDINAL foreigners during the DATE ; and CARDINAL NORP and CARDINAL foreigners during the DATE .


Violation of P1-1;Violation of Art. 8;Violation of Art. 6-1;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE ( GPE ) .

In DATE ORG made an order for the compulsory winding up of a commercial partnership formed by the applicant 's wife in DATE .

On DATE the same court made an order declaring the applicant personally bankrupt on the ground that he was a de facto partner .

On an unspecified date the trustee in bankruptcy filed a list of the bankrupt estate 's debts with the registry .

On DATE the judge assigned to the case gave the trustee in bankruptcy leave to intervene in proceedings that had been brought by a bank , ORG , for the forced sale of the applicant 's house .

On DATE he gave the trustee in bankruptcy leave to lodge tax appeals with ORG ( PERSON ) in respect of sums claimed by the GPE and PERSON tax authorities from the applicant 's partnership .

DATE the judge gave the trustee in bankruptcy permission to withdraw sums from the current account of the bankrupt estate for the payment , inter alia , of fees due to the trustee and an expert .

On an unspecified date in DATE an initial attempt to sell the applicant 's house at auction failed .

On DATE the trustee in bankruptcy lodged a report . On DATE the President of the ORG summoned GPE to appear in order to establish whether he was a partner of the applicant . GPE was heard on DATE .

On DATE and DATE the judge authorised the ORG in bankruptcy to make payments covering , inter alia , an expert 's fees and the costs of publication of various notices .

On DATE the judge gave permission for a lawyer to be instructed to act in the aforementioned proceedings concerning the applicant 's house .

On DATE the judge gave the applicant permission to draw his pension and on CARDINAL DATE authorised the ORG in bankruptcy to settle proceedings that had been brought by FAC for an order for the restitution of certain movables that were part of the bankrupt estate .

On DATE the judge authorised the trustee in bankruptcy to enter into a loan agreement in respect of a building included in the bankrupt estate .

On DATE the judge gave permission for a lawyer to be instructed to act in proceedings brought by GPE contesting the bankrupt estate 's liabilities .

On DATE and CARDINAL DATE the judge authorised the payment of various costs necessarily incurred in the proceedings .

On DATE the trustee in bankruptcy sought an order for the replacement of the chairman of ORG following the latter 's death .

On DATE the judge refused permission for the sale by private contract ( vendita a trattativa privata ) of immovable property from the bankrupt estate on the ground that LAW did not permit private sales of immovable property .

On DATE the judge authorised the payment of a carer 's allowance to the applicant 's wife .

On DATE he authorised the trustee in bankruptcy to return the deposit that had been paid on the proposed sale by private contract .

On CARDINAL DATE the judge granted an application by GPE , one of the applicant 's partners , for restitution of sums paid by a company , CPI , for services she had rendered .

On DATE and CARDINAL and CARDINAL DATE he authorised the payment of advertising costs and taxes incurred on the sale of a building from the bankrupt estate .

On DATE the judge authorised the payment of part of the fees of the lawyer acting in the proceedings brought by GPE

On DATE he authorised the payment of a tax liability and on DATE of sums relating to the sale of the aforementioned building .

On DATE he authorised the payment of the lawyer 's fees incurred in the proceedings for the forced sale of the applicant 's house and on DATE the inclusion of a sum belonging to ORG in the assets of the bankrupt estate .

On an unspecified date in DATE the trustee in bankruptcy intervened in tax enforcement proceedings ( procedura di esecuzione esattoriale ) brought by ORG ( GPE ) for the recovery of sums due on the sale of the applicant 's house . Ultimately , the sale did not go ahead ; on CARDINAL DATE the judge authorised payment of the lawyer who had acted in the proceedings .

On DATE the judge authorised the part payment of seniority pay ( trattamento di fine rapporto ) to the applicant .

On DATE the judge appointed a valuer to value the applicant 's assets and on DATE authorised the payment of the costs thereby incurred .

On DATE he appointed a new chairman to ORG at the request of the trustee in bankruptcy ( who had made a like request on DATE ) .

On DATE a further attempt was made to sell the applicant 's house at auction , without success .

On DATE the trustee in bankruptcy reported on the state of the proceedings at the judge 's request . In particular , he said that all the assets of the bankrupt estate apart from the applicant 's house had been sold . He also reserved the right to make a further proposal for the sale of the property at auction .

On DATE , in response to a request by the judge on CARDINAL DATE , the ORG in bankruptcy explained that there had been no partial distribution ( ripartizione parziale ) of the assets among the creditors because appeals were still pending before ORG .

As the applicant 's house had been unlawfully occupied in the interim by ORG , the judge ordered their eviction in a decision ( decreto di rilascio ) of DATE . On DATE he asked the trustee in bankruptcy to produce a draft proposal for the partial distribution of the assets .

On CARDINAL DATE the ORG in bankruptcy reported that the appeals to ORG had been successful and lodged a draft proposal for the partial distribution of the assets . DATE he was authorised by the judge to transfer the current account of the bankrupt estate to another bank .

On DATE the judge ruled that the draft proposal for the partial distribution of the assets could be implemented .

The following day PERSON moved out of the applicant 's house . However , on an unspecified date PERSON , who in the meantime had appealed against the judge 's order of DATE , proposed to settle the dispute by undertaking to purchase the house .

On DATE the trustee in bankruptcy filed a report .

On DATE the judge fixed DATE as the date for the auction of the applicant 's house .

On an unspecified date the applicant sought a composition with the creditors . His application was declared inadmissible on DATE on the ground that it did not satisfy the conditions laid down by CARDINAL of LAW .

On DATE the applicant asked the judge to refer to ORG the question of the legitimacy of the system of proprietorial and personal disabilities to which bankrupts were subject and , in particular , sections DATE and CARDINAL(CARDINAL ) of LAW and Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW . In a decision of DATE , the judge rejected that application as being manifestly ill - founded , holding that the legislature 's decision to give the creditors ' proprietorial interests precedence over those of the bankrupt did not entail a violation of the debtor 's rights guaranteed by the LAW .

In an application lodged with the registry on DATE , the applicant sought a stay of the order of DATE for the sale of his house .

DATE . On DATE the sale of the applicant 's house by auction was adjourned to DATE , when it was sold .

On DATE the trustee in bankruptcy resigned . ORG appointed a replacement DATE , who lodged a report on DATE .

On DATE the applicant appealed to ORG , with a view to having the order for the sale of his house set aside . According to information he has provided , his appeal was dismissed as being out of time .

On DATE the judge appointed a valuer to carry out a valuation before title to the applicant 's house was transferred to the successful bidder . The transfer was effected by a court order of DATE .

In a decision of CARDINAL DATE the judge approved accounts that had been submitted by the ORG in bankruptcy .

On DATE he authorised payment of the trustee in bankruptcy 's fees .

On DATE he approved the final proposal for the distribution of the assets , noting that the applicant had sufficient means after the sale of his house to honour his debts and bring the bankruptcy to an end .

On DATE the judge terminated the bankruptcy .

The relevant provisions of LAW ( Royal Decree no . CARDINAL of DATE ) read as follows :

“ The bankruptcy order divests the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order . ... ”

“ Legal proceedings concerning disputes over property issues arising in respect of assets forming part of the bankrupt estate shall be taken or defended by the ORG in bankruptcy .

The bankrupt shall only be entitled to intervene in the proceedings in so far as they concern an allegation of criminal bankruptcy on his part or if permitted by law . ”

“ Correspondence addressed to the bankrupt must be passed to the ORG in bankruptcy , who shall be empowered to retain correspondence concerning property interests . The bankrupt may consult the correspondence . The ORG in bankruptcy shall keep the content of correspondence not relating to such interests confidential . ”

“ The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge , the ORG in bankruptcy and the creditors ' committee when summoned unless he is prevented from doing so on legitimate grounds and has been given leave by the judge to send a representative .

If the bankrupt fails to comply with a summons , the judge may order that he be brought by the police . ”

“ A public register of the names of bankrupts shall be held at the registry of each district court . Names shall be deleted from the register by order of the district court . Bankrupts shall be subject to the disabilities laid down by law until such time as their name has been deleted from the register . ”

“ The bankrupt 's property shall be administered by the ORG in bankruptcy from the moment it is recorded in the inventory of such assets drawn up by the ORG in bankruptcy ... ”

The relevant provisions of LAW are worded as follows :

“ The following may not be appointed as guardians or , if already appointed , must cease to act in that capacity :

... a bankrupt whose name has not been deleted from the bankruptcy register . ”

Article CARDINAL essentially prevents disqualified bankrupts from acting as trustees in bankruptcy until their names have been deleted from the bankruptcy register .

Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Civil Code prohibit a bankrupt from being appointed as a director or trustee in bankruptcy of a commercial or cooperative company or as a representative of the debenture holders in a public company .

LAW no . CARDINAL of DATE , as amended by PERSON no . CARDINAL of DATE , essentially provides for the suspension of the bankrupt 's electoral rights for the duration of the bankruptcy proceedings and , in any event , for a period not exceeding DATE from the date of the bankruptcy order .


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

By an administrative decision of CARDINAL DATE of the Head of GPE ( PERSON ) the real estate owned by the applicant ’s husband was transferred to his son – S.K. Neither the applicant ’s husband nor the applicant was informed by the authorities about this decision .

In DATE the applicant ’s husband died in a car accident .

On DATE the applicant filed a request with ORG ( PERSON ) for retrospective leave to appeal against the decision of CARDINAL DATE .

On DATE and CARDINAL DATE the applicant was informed by the Mayor of the Dominowo Commune ( PERSON ) that her request had been left without consideration .

On DATE she complained to the Head of ORG ( PERSON ) about the fact that her case had been left without consideration and that no decision had been taken on it . She did not receive any answer .

On DATE the applicant repeated her request for retrospective leave to appeal against the decision of CARDINAL DATE .

On DATE ORG ( PERSON ) informed the applicant that her request could not be dealt with since the case file had been sent to ORG ( PERSON ) .

On DATE the applicant complained to ORG about the delay . She asked for the proceedings to be accelerated .

On DATE she lodged a complaint about the inactivity of the Mayor of the Commune with ORG ( ORG PERSON ) .

On DATE ORG rejected the applicant ’s complaint , since the applicant had failed to lodge it in accordance with the formal requirements set out in NORP law , namely she had failed to lodge a complaint with the administrative authority under LAW .

On DATE the applicant lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with ORG ( PERSON ) . The complaint was referred to ORG , being the competent administrative authority .

By a resolution of CARDINAL DATE her complaint was dismissed as ill - founded .

On DATE she lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with ORG . She submitted that she had lodged numerous complaints with different administrative authorities , her case had been pending for DATE and no decision had been given on it .

On DATE ORG found the complaint well - founded . It held that the proceedings in the applicant ’s case had exceeded a reasonable time and ordered the Mayor of GPE to proceed speedily with the case .

On DATE ORG of Appeal decided to grant the applicant retrospective leave to appeal against the decision of DATE .

The relevant domestic law and practice concerning the remedies for the inactivity of the administrative authorities at the material time are set out in the ORG ’s judgment in the case of PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


The first and second applicants , NORP and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They are represented before the ORG by Miss M Dyker , a lawyer practising in GPE .

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

The applicants met in DATE and started a relationship . They were married in DATE and have been living as a married couple since , jointly owning their home and having a joint mortgage .

The second applicant , PERSON , was born male , but underwent gender reassignment surgery ( funded by ORG ) in DATE , after a consultation process which began in DATE . The first applicant , NORP , was involved in this process throughout , attending appointments with the relevant medical professionals , and providing both practical and emotional support . The applicants contend that PERSON ’s treatment and surgery have not affected either the emotional or physical aspects of their relationship , and they have left open the possibility of having children in the future .

F wishes to have her new gender recognised . In particular , she wishes to have a birth certificate upon which her gender is recognised as female . By the provisions of LAW ( ‘ ORG ) , provision is made for those who have acquired a new gender to apply for a full ORG ( ‘ GRC’ ) . This in turn entitles the holder to obtain what is , to all outward intents and purposes , a new birth certificate recognising their new gender .

However , it is a condition of the issue of a full ORG that the recipient not be married . As she is married , PERSON is entitled to apply for an interim gender recognition certificate ( ‘ GRC’ ) to allow her female status to be officially recognised , but she would only be able to obtain a full ORG if she and NORP divorce , something to which they are deeply opposed .

ORG would necessarily incur costs of ORG together with solicitors’ costs of QUANTITY . Their representative before this ORG also notes that , in the event that NORP and PERSON were required to divorce , she would have to advise them to take independent legal advice with a view to coming to an agreement as to how they should divide their matrimonial property to protect their financial positions . The applicants contend that a failure to take such advice and divide the property accordingly would lead to NORP , in particular , losing rights . Taking independent legal advice and drawing up a minute of agreement ( even if it were not contentious ) would cost in the region of GBP CARDINAL for each party . There would also be costs associated with any resulting transfers of property for purposes of division : a sale of their property would incur legal costs of CARDINAL .

As of DATE , when the relevant sections of LAW entered into force , the applicants are entitled to enter a civil partnership . However , they do not consider such a partnership a full substitute for marriage . They highlight both what they contend is the different social standing attached to such civil partnerships and also the fact that they do not provide identical legal protection to that enshrined in statutes governing marriage . Entry into a civil partnership would also necessarily incur costs of in the region of GBP CARDINAL.CARDINAL .

LAW ( ‘ ORG ) provides a mechanism whereby transsexuals may have their new genders recognised . LAW provides that ORG must grant an application if it is satisfied that the applicant : ( CARDINAL ) has , or has had , gender dysphoria ; ( CARDINAL ) has lived in the acquired gender throughout DATE ; and ( CARDINAL ) intends to continue to live in the acquired gender until death .

By section CARDINAL , an application must include a report from a registered medical practitioner , or a chartered psychologist , either of whom must be practising in the field of gender dysphoria . This report must include details of diagnosis . A second report must also be included , which need not be from a medical professional practising in the field of gender dysphoria , but could be from any registered medical practitioner . CARDINAL of the reports must include details of any treatment that the applicant has undergone , is undergoing or that is prescribed or planned , for the purposes of modifying sexual characteristics .

Section CARDINAL sets down the consequences of an application being successful . It reads in material part as follows :

“ ( CARDINAL ) If a ORG grants an application under section CARDINAL(CARDINAL ) it must issue a gender recognition certificate to the applicant .

( CARDINAL ) Unless the applicant is married , the certificate is to be a full gender recognition certificate .

( CARDINAL ) If the applicant is married , the certificate is to be an interim gender recognition certificate .

( CARDINAL ) Schedule CARDINAL ( annulment or dissolution of marriage after issue of interim gender recognition certificate ) has effect [ this amends section CARDINAL(CARDINAL ) of the ORG ( GPE ) Act DATE so that a party can apply to the courts for a divorce on the basis of the issue of an interim gender recognition certificate to either party to the marriage ] .

Section CARDINAL governs the situation where an interim certificate has been granted . It reads in relevant part as follows :

“ ( CARDINAL ) A court which -

( b ) ( in GPE ) grants a decree of divorce on that ground ,

must , on doing so , issue a full gender recognition certificate to that party and send a copy to the Secretary of ORG .

( CARDINAL ) If an interim gender recognition certificate has been issued to a person and either-

( a ) the person ’s marriage is dissolved or annulled ( otherwise than on the ground mentioned in subsection ( CARDINAL ) ) in proceedings instituted during DATE beginning with DATE on which it was issued , or

( b ) the person ’s spouse dies within that period ,

the person may make an application for a full gender recognition certificate at any time within the period specified in subsection ( CARDINAL ) ( unless the person is again married ) .

( CARDINAL ) That period is the period of DATE beginning with the day on which the marriage is dissolved or annulled or the death occurs .

( CARDINAL ) An application under subsection ( CARDINAL ) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted , or of the death of the spouse and the date on which it occurred .

( CARDINAL ) An application under subsection ( CARDINAL ) is to be determined by ORG .

( CARDINAL ) The Panel –

( a ) must grant the application if satisfied that the applicant is not married , and

( b ) otherwise must reject it .

( CARDINAL ) If the Panel grants the application it must issue a full gender recognition certificate to the applicant . ”

The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce .

The other provisions of DATE only apply where a full gender recognition certificate is concerned . These include , for instance , section CARDINAL , which provides that :

“ ( CARDINAL ) Where a full gender recognition certificate is issued to a person , the person ’s gender becomes for all purposes the acquired gender ( so that , if the acquired gender is the male gender , the person ’s sex becomes that of a man and , if it is the female gender , the person ’s sex becomes that of a woman ) . ”

By Paragraph CARDINAL of Part CARDINAL of Schedule CARDINAL to the GRA CARDINAL , the issue of a full gender recognition certificate obliges the Registrar General for GPE to make an entry in the ( new ) ORG for GPE and to mark the original entry in the register of births referring to the birth ( or adoption ) of the transsexual person to show that the original entry has been superseded . Paragraph CARDINAL makes provision for an extract to be made of any entry in the ORG . An abbreviated certificate of birth compiled from the ORG must , by LAW , not disclose that it is compiled from the ORG . Both copies of and abbreviated certificates therefore look the same as any other birth certificates ; they therefore act , to all outward intents and purposes , as new birth certificates .

Not all provisions of the ORG require status or situations existing prior to gender recognition to be changed or dissolved . For instance , provisions as to parenthood ( section CARDINAL ) , succession ( section CARDINAL ) and peerages ( section CARDINAL ) explicitly provide that the person ’s gender has become the acquired gender does not effect their status or rights flowing therefrom .

Section CARDINAL(CARDINAL)(e ) of the Marriage ( GPE ) Act DATE provides that there is a legal impediment to a marriage in NORP law where the parties “ are of the same sex . ” The NORP position is considered to be broadly similar to that in GPE , where the relevant provision is contained in section CARDINAL(c ) of LAW DATE , which provides that a marriage is void unless the parties are “ respectively male and female . ”

In the NORP case of PERSON v PERSON [ DATE ] Probate Reports CARDINAL it was held that marriage could only be between a woman and a man , determined on genital , gonadal and chromosomal factors , and should not take into account the party ’s psychological beliefs , however genuine and profound .

Section CARDINAL(c ) of LAW DATE and PERSON v PERSON have recently been reconsidered by ORG in PERSON v PERSON [ DATE ] UKHL CARDINAL . Their Lordships considered that the words “ male ” and “ female ” were to be given their ordinary meaning and referred to a person ’s biological gender as determined at birth so that , for purposes of marriage , a person born with CARDINAL sex could not later become a person of the opposite sex . They therefore held that it was not possible under LANGUAGE ( and by analogy LANGUAGE ) law for a person to marry another person who was of the same gender at birth , even if one of them had undergone gender reassignment surgery . They did , however , issue a declaration that Section CARDINAL(c ) of the DATE Act represented a continuing obstacle to the ability of the ( male to female ) transsexual petitioner to enter into a valid marriage with a man , and that it was therefore incompatible with her rights under LAW .

The ORG ( GPE ) Act DATE , as amended by LAW , reads in relevant part as follows :

“ Section CARDINAL

( CARDINAL ) In an action for divorce the court may grant decree of divorce if , but only if , it is established in accordance with the following provisions of the LAW that –

( b ) an interim gender recognition certificate under LAW has , after the date of the marriage , been issued to either party to the marriage . ”

The ORG ( GPE ) Act DATE does not provide for any defence to divorce where it is sought on the basis of the issue of an interim gender recognition certificate . The LAW is to be amended by a PERSON currently before ORG , but it does not appear that any amendments that may be made by the PERSON are material to this section .

The financial consequences of divorce are set out in the ORG ( GPE ) Act DATE and LAW DATE . The rights on divorce are broadly speaking that the parties are DATE of the property referable to the period of the marriage , regardless of the name in which the property in question is formally held . Where no application is made for financial provision under LAW ( Scotland ) Act DATE , then the general law of property applies , such that parties may lose rights – for instance , property will continue to be held by the person in whose name it is held , even if that results in CARDINAL person having more property than another .

Other consequences of divorce include the loss of spousal rights under the LAW DATE , the loss of rights in relation to the matrimonial home under ORG ) ( GPE ) Act DATE , tax consequences such as the loss of spousal exemptions , and the loss of entitlement to pension or other benefits contingent on parties being married ( e.g. widow ’s benefits under ORG DATE ) . It may also lead to an inability to recover damages if the ex - spouse dies due to somebody else ’s fault by operation of Schedule CARDINAL to the Damages ( GPE ) Act DATE ( although this provision has not been the subject of judicial scrutiny since the passage of LAW DATE ) . Finally , certain rules of evidence , for instance that a spouse is not generally a compellable witness against another spouse ( under sections CARDINAL and CARDINAL Criminal Procedure ( GPE ) Act DATE ) , cease to have effect .

This LAW the CPA CARDINAL ) came into force on DATE . It has the effect of allowing same sex couples to acquire a legal status for their relationships , with legal rights and responsibilities . The LAW is to be amended with respect to GPE by LAW ( GPE ) PERSON , currently before ORG ; this will have the effect of increasing the rights of same sex cohabitants in GPE over and above those in force in GPE and GPE .

The provisions in DATE ( as amended as per LAW ( GPE ) Act DATE ) do not exactly mirror those applicable to marriages . For instance , the provisions for formation of civil partnerships do not entirely match those for civil ( i.e. not religious marriages ) contained in the Marriage ( Scotland ) Act DATE and subordinate legislation : there is , for instance , no equivalent to section CARDINALA of LAW , which preserves the validity of marriages which in their formation failed to comply with CARDINAL of the formal requirements imposed by that LAW .

On dissolution of a civil partnership , the LAW does not contain any provision requiring property relating to periods of marriage prior to civil partnership to be taken into account ( other than property bought for use as a family home or furniture or plenishings for the home , by an amendment to LAW DATE ) .


Preliminary objection joined to merits and dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Non-pecuniary damage - award

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

The present application was introduced by PERSON , a NORP national born in DATE who lived in FAC . Following the introduction of the application , PERSON died and PERSON King ( her daughter ) continued the case on her behalf . ORG has referred below to PERSON as the applicant .

The applicant ’s son , PERSON , was born in DATE and he died on DATE . The present application relates to his death .

CARDINAL

Mr PERSON was diagnosed with schizophrenia in DATE . He was treated by a mental health team which was operated by ORG ( “ the ORG ” ) and which assigned Mr PERSON as Mr PERSON ’s Care Co - ordinator . On DATE Mr PERSON contacted the applicant and Mr PERSON : he was hearing voices ordering him to kill himself . The applicant and Mr PERSON went to Mr PERSON ’s home .

Mr PERSON contacted ORG ( “ CRHTT ” ) informing it that PERSON might need to be hospitalised . The PERSON is a community - based team of mental health professionals operated by ORG from the psychiatric unit of ORG ( “ the Hospital ” ) . Mr PERSON was told that no beds were available but that PERSON could have a crisis bed at FAC ( “ the ORG ” ) . ORG is responsible for the ORG and it is located in a building of which the ORG is the occupier for the purposes of LAW DATE ( “ the DATE LAW ) . It is staffed by social workers experienced in the care of mental health patients and it provides an alternative to in - patient care where the risk assessment renders this appropriate . ORG patients are not subjected to formal monitoring but staff regularly check on them and have custody of their medication . While patients are voluntary , cameras monitor the outside of the building so that ORG is alerted if a patient leaves .

On the way to the ISMOS Unit Mr PERSON told Mr PERSON that he found the ‘ voices’ so distressing that he felt like killing himself . Mr PERSON therefore took PERSON to ORG ( run by ORG ) for a clinical assessment . This was carried out by a psychiatrist of the PERSON assisted by a psychiatric nurse and Mr PERSON . Mr PERSON was assessed to be a low suicide risk . He had once again reduced his medication in order to drink and socialise at DATE . His psychotic symptoms had therefore returned but he had stabilised rapidly as he had already re - taken his medication that morning . The voices had diminished and were not troubling him any more although he was terrified of their returning . During the assessment , he confirmed that he did not want to kill himself . He had no history of self - harm / attempted suicide , he had not acted on his earlier hallucinations and , even when having hallucinations , he had sought help .

Since it was agreed that Mr PERSON needed a safe and supported environment , he was admitted to ORG as a voluntary in - patient . He was allocated one of the crisis rooms across from the staff room on the sixth floor . During dinner he seemed withdrawn and unwell . TIME , he was found wandering outside the building but he returned with staff to his room . At CARDINAL there was a change of shift , the new staff were briefed and PERSON appeared more relaxed and spoke with them .

Mr PERSON was due his medication at CARDINAL . At around CARDINAL he broke a window in his room and fell from the sixth floor to his death .

On DATE an internal investigation into Mr Reynolds’ death was completed by the ORG . The resulting ORG recommended , inter alia , that the bedroom windows in the crisis rooms at ORG be reinforced . On CARDINAL DATE the applicant ’s daughter wrote a letter of complaint to ORG . On DATE the Trust responded stating that it had reviewed the information available on the relevant date but that there had been no indication that Mr PERSON would harm himself .

The applicant could not afford legal representation for the Inquest . She considered applying to ORG for legal aid and , following receipt of the Coroner ’s views as regards the CARDINAL criteria applied by the Commission in deciding on a grant of legal aid , the applicant decided not to pursue a claim .

On DATE the Inquest was opened and adjourned by the Coroner . It resumed on DATE . The applicant attended with CARDINAL daughters including PERSON . The Coroner sat without a jury . He explained that the Inquest was to find the answers to QUANTITY limited factual questions : who was the deceased and how , where and when did the death come about . “ How ” was limited to “ how the cause of death arose ” since an Inquest was not an opportunity to examine the broad circumstances in which the death occurred so that all questions touching thereon would be excluded as would any question of civil or criminal liability .

Oral evidence was given by , inter alia , the psychiatrist and the psychiatric nurse who assessed PERSON ; by the relevant CARDINAL members of staff at ORG ; by the eye witness who saw him step through the broken window ; and by the team leader of ORG . The applicant gave evidence : she considered that her son had not attempted to commit suicide but rather had wished to go home and had not realised he was on the sixth floor . The applicant submitted questions to the Coroner prior to the Inquest and she and her daughters put questions to witnesses during the Inquest .

The Inquisition Form recorded that Mr PERSON had been placed in the crisis room for DATE for monitoring ; that TIME he broke a window , climbed through it and walked off the window sill ; and that he sustained fatal injuries as a result of the fall and was pronounced dead that day . The Coroner ’s conclusion as to death was an “ Open verdict ” , he explaining that , while those with schizophrenia presented a high incidence of suicide , there was insufficient evidence that Mr PERSON intended to kill himself .

Since the Coroner was concerned about a psychiatric facility on a sixth floor , in DATE he reported the incident to ORG under LAW of LAW . By letter of DATE the ORG informed the Coroner that , since an ORG was used when the risk was low , its location on the sixth floor was not unusual . However , the windows had been reinforced and , in the longer term , there were plans to re - locate the ORG to a CARDINAL storey dwelling .

The applicant obtained legal aid and issued an action for damages under section CARDINAL of LAW DATE ( HRA ” ) against ORG and the ORG , arguing that they had failed to adequately discharge their duties to PERSON in breach of ORG , CARDINAL and DATE of the Convention in that they had failed to ensure his appropriate placement , failed to ensure that ORG was safe and failed adequately to assess the suicide risk or to admit him for in - patient care . An expert report obtained by the applicant from a consultant psychiatrist for the proceedings ( although not served since the action was later struck out , see below ) considered that the care of PERSON fell below the required standard .

On DATE , ORG decided the case of ORG ( [ DATE ] EWHC CARDINAL , paragraphs CARDINAL - CARDINAL below ) .

The NHS Trust and the ORG served defences in DATE . The ORG accepted that it owed a common law duty to take reasonable steps to try to prevent PERSON from taking his own life . The ORG accepted that it owed a common law duty of care not to expose PERSON to a reasonably foreseeable risk of injury or harm on the LOC as well as a common duty of care under LAW . However , both defendants argued that the applicant had no cause of action and that the case should be struck out since the High Court judgment in the PERSON case had provided that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of LAW . The applicant requested that her action be adjourned pending the appeals in the PERSON case .

On DATE ORG delivered its judgment striking out the applicant ’s case pursuant to LAW holding that there were no reasonable grounds for bringing the claim . ORG noted that ORG in the PERSON case had accepted that , where the allegations were of clinical negligence , the measure of the duty owed to both voluntary and involuntary patients was as outlined in PERSON v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALV ) and in R ( Takoushis ) v. PERSON and Another ( [ DATE ] CARDINALWLR CARDINAL ) namely , that there had to be at least gross negligence of a kind sufficient to sustain a charge of manslaughter . The applicant had not made any such allegations :

“ It is thus clear that there is strong authority which would make it highly unlikely that any decision on appeal in the case of Savage would render [ the ORG and the ORG ] liable under the provisions of LAW . ”

In refusing the applicant ’s request for an adjournment , ORG did not accept that the law relating to the treatment of voluntary mental health patients was uncertain or in a state of development which was likely to lead to a change in the law which would enable the applicant ’s claim to succeed . It was not persuaded that the prospect of the appeal in the case of PERSON raised a sufficient prospect of an outcome favourable to the applicant as to justify refusing the orders sought by the defendants .

CARDINAL barristers , experienced in clinical negligence , human rights cases and Inquest law , advised the applicant that an appeal had no realistic prospect of success . CARDINAL of these opinions was submitted to ORG which withdrew legal aid in DATE .

Section CARDINAL of the ORG makes it unlawful for a public authority to act incompatibly with Convention rights , unless it is not possible to act differently by virtue of primary legislation . A successful claim under LAW renders the relevant public authority liable under LAW ORG and a judge has the power to award damages under section CARDINAL of the ORG .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the DATE LAW to hold an Inquest in circumstances where there are grounds to suspect that the person ( a ) has died a violent or an unnatural death or ( b ) has died a sudden death of which the cause is unknown .

As to the scope of an Inquest ( including a resumed CARDINAL ) , section CARDINAL(CARDINAL)(b ) of the DATE Act outlines the content of the Inquisition Form ( a document completed by ORG jury at the end of the evidence ) . It must set out , so far as such particulars have been proved ( i ) who the deceased was ; and ( ii ) how , when and where the deceased came by his death . Rule CARDINAL of LAW ( “ the DATE Rules ” ) requires that proceedings be directed solely to ascertaining : ( a ) who the deceased was ; ( b ) how when and where he came by his death ; and ( c ) the particulars required by LAW to be registered concerning the death . Rule PERSON ) specifically provides that neither the Coroner nor the jury shall express any opinions on any other matters . Rule CARDINAL provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person .

On DATE ORG decided ( NORP ( PERSON ) ν GPE [ DATE ] CARDINAL A.C. CARDINAL ; and NORP ( PERSON ) v. GPE [ DATE ] CARDINAL W.L.R. CARDINAL ) that the limited scope of Inquests to date was incompatible with the procedural requirements of LAW . Using the interpretation mechanism of section CARDINAL of the ORG , ORG extended the Inquest regime so that “ how ” ( section CARDINAL(CARDINAL)(b)(ii ) of LAW and Rule CARDINAL(l)(b ) of LAW ) was to be interpreted as meaning “ by what means and in what circumstances ” the deceased came by his death . Lord PERSON clarified that , however the jury ’s extended factual conclusions were to be conveyed , Rule DATE was not to be infringed so that there could be no finding of criminal or civil liability . While acts or omissions could be recorded , expressions suggestive of civil liability , in particular neglect , carelessness and related expressions were to be avoided .

A person who suffers injury , physical or psychiatric , in consequence of the negligence of another may bring an action for damages for that injury . Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages . Any personal - injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death .

Claims arising from a death caused by negligence are brought under LAW DATE ( “ the LAW ” ) or LAW ( LAW Act DATE ( “ the DATE LAW ) . The DATE Act enables those who were financially dependent on the deceased to recover damages for the loss of support : the scheme is compensatory and , save for the sum of currently MONEY for bereavement awarded to the spouse of a deceased or parent of a deceased child under CARDINAL at the time of death , damages are awarded to reflect the loss of support . The DATE Act enables damages to be recovered on behalf of the deceased ’s estate and may include any right of action vested in the deceased at the time of death together with funeral expenses .

Mr Takoushis , diagnosed with schizophrenia , left a hospital where he was a voluntary patient and committed suicide . His wife challenged certain rulings of the Coroner . ORG , following the approach of ORG , examined , in the first place , whether those rulings were justified on the assumption that LAW was not engaged . ORG did not uphold the ORG ’s rulings and ordered a new Inquest .

ORG went on to examine the applicability and scope of the protection of LAW in such cases partly because the point was evidently of some potential importance for the new Inquest which was now to be held . It accepted that simple negligence in the care of a patient resulting in his or her death was not sufficient to amount to a breach of the ORG ’s obligation under LAW to protect life , although the position might be different where gross negligence or manslaughter had been alleged ( relying , inter alia , on R ( ORG ) v GPE and GPE [ DATE ] EWHC CARDINAL ( Admin ) , itself based on PERSON v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALV ) . ORG concluded by rejecting the argument that the deceased should be considered an involuntary patient as he would have been detained had he been seen leaving the hospital : the court found that the deceased was clearly a voluntary patient and that there was an important difference between the principles applicable to those who were detained and those who were not .

The deceased was an involuntary mental health patient who left an open acute psychiatric ward and committed suicide .

The Trust contended before ORG that the extent of the obligations of health authorities to protect a patient ’s life was to be found in PERSON v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , ORG CARDINALV ) namely , that the treatment alleged amounted either to gross negligence or to manslaughter . The claimant argued , citing PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) , that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so . The claimant sought to distinguish her son ’s position ( an involuntary patient ) from that of a voluntary patient arguing that the test for LAW liability in PERSON did not apply to her son and equating the duty of care owed by the ORG to an involuntary patient with that owed to a prisoner in the criminal justice system . ORG expressly rejected that distinction , finding that the proper test applicable to a breach of the substantive obligation under LAW , in respect of both voluntary and involuntary patients where the relevant allegations were of clinical negligence , was the PERSON test namely , that of gross negligence of a kind sufficient to sustain a charge of manslaughter ( ORG relied on the above - cited Takoushis judgment ) . ORG struck out ORG action . In DATE ORG allowed ORG appeal .

The appeal to ORG was rejected by judgment dated DATE . Lord PERSON , giving the main judgment of ORG , noted that the fundamental error in the approach of the ORG was to conceive of the PERSON decision and the PERSON judgment as laying down CARDINAL mutually exclusive approaches whereas the ORG ’s case - law did not contain a hint of such an approach . The principles represented by those cases related to different aspects of the LAW obligations of health authorities and Lord PERSON summarised the relevant obligations of the health authorities under LAW as follows :

“ In terms of LAW , health authorities are under an over - arching obligation to protect the lives of patients in their hospitals . In order to fulfil that obligation , and depending on the circumstances , they may require to fulfil a number of complementary obligations .

In the first place , the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard . In addition , the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients . Failure to perform these general obligations may result in a violation of article CARDINAL . If , for example , a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and , as a result , a patient is able to commit suicide , the health authority will have violated the patient ’s right to life under article CARDINAL .

Even though a health authority employed competent staff and ensured that they were trained to a high professional standard , a doctor , for example , might still treat a patient negligently and the patient might die as a result . In that situation , there would be no violation of LAW since the health authority would have done all that the article required of it to protect the patient ’s life . Nevertheless , the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence . This is the situation envisaged by PERSON .

The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that , on a particular occasion , a nurse negligently left his post and a patient took the opportunity to commit suicide . There would be no violation of any obligation under LAW , since the health authority would have done all that the article required of it . But , again , the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too . Again , this is just an application of PERSON .

Finally , article CARDINAL imposes a further “ operational ” obligation on health authorities and their hospital staff . This obligation is distinct from , and additional to , the authorities’ more general obligations . The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “ real and immediate ” risk of suicide . In these circumstances article CARDINAL requires them to do all that can reasonably be expected to prevent the patient from committing suicide . If they fail to do this , not only will they and the health authorities be liable in negligence , but there will also be a violation of the operational obligation under article QUANTITY to protect the patient ’s life . This is comparable to the position in GPE and PERSON . As the present case shows , if no other remedy is available , proceedings for an alleged breach of the obligation can be taken under LAW DATE . ”

Lord PERSON noted that it was relevant to the LOC obligations under LAW that the deceased was a detained patient and he continued :

“ Any auction in the comparative vulnerability of prisoners , voluntary patients , and detained patients would be as unedifying as it is unnecessary . Plainly , patients , who have been detained because their health or safety demands that they should receive treatment in the hospital , are vulnerable ... not only by reason of their illness which may affect their ability to look after themselves , but also because they are under the control of the hospital authorities . Like anyone else in detention , they are vulnerable to exploitation , abuse , bullying and all the other potential dangers of a closed institution . ORG mutandis , the principles in the case law which the NORP court has developed for prisoners and administrative detainees must apply to patients who are detained . ...... The hospital authorities are accordingly responsible for the health and well being of their detained patients . Their obligations under LAW include an obligation to protect those patients from self - harm and suicide . ”

Baroness PERSON noted the special position of detained patients and that it was not necessary to address in that case the extent of the ORG ’s operational duty to protect non - detained patients . Lord PERSON and Lord PERSON agreed with both Lord PERSON and ORG .

The deceased was a voluntary patient who committed suicide once released on home leave . Her parents brought a claim under the ORG and LAW , in their own right and on behalf of their child ’s estate . The claim under LAW on behalf of the estate for negligent care was settled by the Trust : QUANTITY sterling ( ORG ) in general damages and LAW in funeral expenses , plus legal costs .

The High Court ( [ DATE ] EWHC DATE ( QB ) ) and ORG ( DATE ] EWCA Civ CARDINAL ) held that there was no operational duty under Article CARDINAL on the hospital authorities to take reasonable steps to protect the deceased against the risk of suicide because she was a voluntary patient and the remedy for allegations of clinical negligence as regards voluntary patients was an action in negligence . In any event , the parents were no longer victims for the purposes of the ORG given their settlement of the DATE Act proceedings . The parents appealed .

On DATE ORG ( [ DATE ] ORG ) allowed the appeal , Lord PERSON giving the main judgment . He found that the difference between voluntary and involuntary psychiatric patients was more apparent than real , noting that a voluntary patient who was a suicide risk was taking medication which would compromise his / her ability to make an informed decision , was likely to be detained if he / she attempted to leave and , indeed , may have consented to be a patient to avoid detention . An informal psychiatric patient ’s position was therefore more analogous to that of the child at risk of abuse ( Z and Others v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALV ) . Accordingly , he was in no doubt that ORG owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide . On the facts , that obligation had not been fulfilled since the decision to allow her home on leave was one that no reasonable practitioner would have made .

Moreover , by settling the DATE negligence claim on behalf of the estate , the parents could not be said to have renounced their own LAW claim for non - pecuniary damages for bereavement to which damages they were entitled . However , negligence proceedings had not been open to them ( section CARDINALA of LAW CARDINAL , the deceased not being a minor on death ) . Lord PERSON awarded each parent GBP CARDINAL under LAW . PERSON , Lord PERSON , and Lord PERSON delivered concurring judgments and Lord PERSON agreed with the main judgment and with the added comments of the remaining judges .