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

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She is represented before the ORG by PERSON , a solicitor practising in GPE .

The applicant ’s son , PERSON ( “ JS ” ) born on DATE , hanged himself while in detention at ORG ( “ PERSON ” ) on DATE . This application concerns issues relating to his death .

By DATE three social services investigations had been carried out into allegations of ill - treatment of JS ( then DATE ) , concluding that the allegations were unfounded . During the third , concerns were raised about JS’ mental health . From DATE he was treated for depression and the relevant child services reported his behaviour as unpredictable and aggressive . During DATE his behaviour continued to degenerate and in DATE he was referred to a psychiatrist ( Dr F , a specialist in child and adolescent psychiatry ) who found that he suffered from a conduct disorder with possible co - morbid depressive illness , that he was very vulnerable and that he risked harming himself . On DATE an ambulance arrived at JS’ home following reports of his violent behaviour and he was abusive to the ambulance men . He was arrested for affray . A psychiatric assessment ( DATE ) diagnosed depressive conduct with abuse of alcohol and other substances and found that JS was a risk to himself and others and that custody would increase the risk of self - harm . Given his unstable family situation , a protection order was made and he was admitted to a local authority children ’s home . On DATE JS and CARDINAL other children from the children ’s home carried out CARDINAL street robberies of mobile phones ( it was accepted in later proceedings that JS had played a peripheral role ) .

On DATE he was convicted on the prior affray charge . He was sentenced to a DATE supervision order : he would continue in the children ’s home and follow training and treatment options . JS continued to demonstrate vulnerability and present serious management problems and self - harm risk . Another psychiatrist who examined JS in DATE expressed much concern about his fragile emotional state , recommending containment and constant vigilance .

On DATE he appeared at ORG and pleaded guilty to the CARDINAL charges of robbery . He was convicted and remanded on bail to the children ’s home pending sentencing . In DATE he slashed his face in his room in the children ’s home CARDINAL times . The following day JS was reported as being under a great deal of pressure . He also went missing from the home from DATE but returned of his own volition , after which he was charged with a breach of bail .

At the later hearing at ORG for sentencing on the robbery charges , his counsel drew the trial judge ’s attention to ORG ( prepared by ORG , “ ORG ” ) and , in particular , to references to his “ history of self harm and ... threatened suicide ” and to PERSON belief that the “ self harming behaviour may escalate ” . Attention was also drawn to a letter from the applicant ’s social worker which accompanied ORG and which also referred to attempted self - harm and to concern “ for his safety and welfare given his history of low mood of self - harm when in distress ” . When sentencing JS , the judge referred to those passages and stated that they had to be “ most expressly drawn to the attention of the authorities ” : that remark was made in the course of his counsel ’s submissions and was substantially repeated in the trial judge ’s sentencing remarks . ORG concluded that JS would be at particular risk in the event of a custodial order and it recommended ( supported by his social worker ) a ORG and Rehabilitation Order .

On DATE in passing the sentence , the trial judge referred to remarks of the Lord Chief Justice that those who commit street robberies should receive immediate custodial sentences ( Attorney General ’s Reference Nos . CARDINAL and DATE [ DATE ] CARDINAL ORG ( PERSON ) CARDINAL ) . He made a CARDINAL detention and training order ( a custodial order , “ ORG ” ) . JS could have been detained in ORG ( “ YOI ” ) , in FAC ( “ STC ” ) or in a ORG ( “ LASCH ” ) . ORG ( “ ORG ” ) placed JS in PERSON and he was transferred on DATE .

Although his counsel advised in favour of an appeal against sentence ( as manifestly excessive ) , an application for leave was not pursued .

On arrival at PERSON was on an open FCARDINALSH form ( at risk of self - harm ) and placed in the health care unit . He was initially put in strip clothing ( simple linen tunic , held together by adhesive strips under which he was naked ) . He was placed in a cell with reduced ligature points , a surveillance camera and high levels of observations . Within DATE he was moved to a single cell ( in the health care unit ) with no surveillance camera or reduced ligature points . Observation was reduced to TIME intervals .

An application was made by ORG for JS’ transfer from the YOI but , prior to that being decided , on DATE JS was found dead , hanging from strips of linen attached to the bars of the window of his cell .

On DATE following JS’ death the GPE area manager for prisons instigated a prison service investigation ( assisted by an advisory panel made up of experts from ORG office , ORG and the ORG ) and it was completed on DATE .

Deaths in custody are also automatically subject to ORG by a senior ORG manager or an independent consultant . ORG into the circumstances of JS’ death was prepared by the ORG Manager of the ORG ( which had completed ORG ) and it was completed on DATE . This report was forwarded to the ORG in DATE and contributed to ORG . An interim report was presented to the ORG on DATE . A final report was prepared and presented to ORG on CARDINAL DATE following the receipt of the Coroner ’s verdict ( see below ) .

Following advice received from ORG and the ORG , the relevant ORG ( ORG ) agreed to conduct a full investigation of LOC case under LAW guidance “ ORG to LAW ” DATE . An independent author was commissioned to prepare the overview report and to chair the multi - agency panel established to steer the review process . The “ LAW ” began on DATE and the Trafford ACPC adopted the final overview report in DATE .

On DATE , during a debate in the ORG or ORG , one of the questions put to the ORG was whether there would be an independent inquiry into the death of JS . Lord PERSON of GPE responded on behalf of the Government . He noted that the Inquest would resume soon , that that would be complemented by a comprehensive summary of the lessons learned by the various agencies involved ( which results would be shared with the applicant ) and that , in the meantime , other improvements had been made to reception , protection and healthcare processes including training programmes .

The applicant brought a civil claim against ORG and the ORG regarding JS’ death alleging negligence and a breach of LAW DATE ( Articles CARDINAL and CARDINAL of the Convention ) in relation to his allocation by the ORG to PERSON and his treatment there . She also made a claim against the ORG under LAW ( in conjunction with ORG and CARDINAL of the Convention ) on the basis that the ORG was operating a discriminatory policy under which girls aged DATE , whether vulnerable or not , were given priority over vulnerable boys over DATE of age , for placement outside the prison service . The civil claim did not challenge the sentence imposed on JS as such a claim would have been prevented by section QUANTITY of LAW DATE .

A payment into court was made by the respondents . The applicant ’s solicitor and counsel both advised her that the lodgement was a “ reasonable offer ” and a sum that she could reasonably expect from a court if the entirety of her claim was accepted . ( ORG later described this sum as “ substantial ” ) . She requested but was refused an admission of liability . The applicant felt obliged to accept the lodgement and the proceedings were settled in DATE , before the Inquest opened .

The Inquest into JS’ death took place DATE . The applicant was legally represented and present . The Inquest heard evidence , either in writing or in person , from CARDINAL witnesses including the Chief Executive of the ORG and the Governor of PERSON . The applicant submitted an expert report which outlined a number of factors which meant that boys of DATE were most likely to be allocated to YOIs given the increase in child imprisonment particularly of girls ; the increase of periods of custodial detention ; and the policy of the ORG to prioritise children of DATE of age for placement in STCs or LASCHs which inevitably reduced places for older juveniles . The above - noted reports of investigations already conducted were before the Coroner and he also commissioned his own expert psychiatric report in which the view was expressed that JS “ simply should never have been allocated to GPE ” .

The Coroner defined the scope of the Inquest as follows :

“ ( a ) JS having been sentenced ( we can not go behind the sentence ) , was all relevant and necessary information available to properly reach a decision as to the appropriate allocation for [ JS ] ?

( b ) With that information and the sentencing PERSON remarks , what allocation options were available , what were considered and what criteria [ were ] used to exercise them ? The inquest can not go into matters of resources , save perhaps for observing that , if it is the case , that lack of resources may have been a factor whether critical or contributory ?

( c ) Having been allocated to [ PERSON ] what then should have happened to [ JS ] ?

( d ) What should have been the correct approach once [ JS ] was on the hospital wing ? Should more liaison have taken place between the Agencies . Did PERSON have all the necessary relevant information , did it make the correct risk/ care plan assessment ?

( e ) To what extent did the differing Agencies know what the other was doing ? It appears that the GPE [ ORG ] were still trying to get [ JS ] transferred to a [ ORG ] whereas those within the [ YOI ] were seeking to integrate him into the main wing i.e. further within the prison system . On the face of it , these aims conflict .

( f ) Should it have been clear that [ JS ] was to remain on the hospital wing until secure accommodation was found ? If so , should [ JS ] have been told this ?

( g ) Is it correct that in the light of the experience of others in [ JS’ ] position being successfully integrated into the main wing that it was then right for [ JS ] ? What if any thing was there to distinguish [ JS ] from any other inmate who had exhibited similar history and symptoms ? What if anything could have been done to indicate that [ JS ] was different to the previous inmates and that he would react in the way that he did ?

( h ) Allocation and re - allocation I take as the same issue . The fact that the initial allocation did not succeed would that , as a matter of principle , negate the need to continue that process ? ...

[ Sentencing policy ] or change in policy , which may on may not increase the number of children in custody , is not within the scope of this inquest . It is a matter of national interest which should be dealt with at that level .

The Inquisition form completed by the jury recorded a unanimous verdict of “ Accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it . ” The jury also responded to a “ ORG questionnaire ” ( R ( PERSON ) v. GPE and CARDINAL ] CARDINALAC CARDINAL ) which had been prepared by the Coroner in consultation with the parties’ legal representatives . A later report prepared by PERSON ( see below ) summarised the jury Inquest ’s conclusions and recommendations as follows :

“ Quality of Pre - sentence Information

The Inquest concluded there were weaknesses in both the quality and handling of information at the pre - sentence stage . Although the Jury accepted that the Asset format was an appropriate way to bring together relevant information about the young person , they were critical of the [ ORG ] for its completion of the Asset assessment material and drew attention to the ‘ Do n’t Know ‘ responses to key aspects of the Asset framework that they considered inadequate . Attention was drawn towards the importance of providing additional documentary evidence to support the Asset judgement , especially where vulnerability was the issue . The Coroner emphasised throughout the importance of providing a good psychiatric assessment of the young person and ensuring that the court and all relevant parties were in possession of this material .

Allocation Arrangements

The Inquest was unanimous in its conclusion that the placement of [ JS ] in a ORG was not appropriate and that he should have been placed in a [ ORG ] . The Inquest heard evidence about the allocation arrangements and the difficulties in matching young people ’s needs and appropriate services given the limited capacity of the local authority secure sector . The Coroner expressed great concern about this situation and also drew attention to those vulnerable DATE who , because of their age , appeared even less likely to be able to access a secure children ’s home .

The Coroner also recommended that the system for placement should hold open for a longer period the possibility of transfer to more suitable accommodation . Young people who are disturbed and vulnerable need to feel , and be made aware , that their initial placement may be reviewed . The Jury recommended that young people such as [ JS ] should be held in some temporary intermediate provision outside the main YOI estate while such considerations took place .

Quality of communication

The Coroner and Jury were concerned by what they perceived as failures in the communication arrangements and the passing of information between professionals . They made a general recommendation that these arrangements should be subject to review and improvement . In particular , they drew attention to their concern about the availability of the psychiatrist ’s report and the gaps in communication between the [ ORG ] and PERSON in respect of the transfer application . They also felt that more prominent means should be found by which to signal levels of risk .

PERSON YOI ORG

The Inquest concluded that the care and attention given to [ JS ] by the medical , nursing and YOI staff at ORG was provided in an appropriate way . However , there was unanimous condemnation of the building and its facilities .

Use of Safe Clothing

The Inquest learnt that [ JS ] had spent DATE and nights in ORG wearing only safer cell clothing with no underwear . Although this clothing was issued for [ JS’ ] self protection , the Coroner and his Jury were concerned with the possible de - humanising aspects of this approach and recommended that the practice be reviewed . ”

The single judge in later judicial review proceedings found that the Inquest was “ a model of what was required to discharge the ORG ’s investigative obligation under LAW .

On DATE the Coroner wrote to the Secretary of ORG ( Rule CARDINAL of LAW ) requesting a public inquiry :

“ Without going behind the sentence [ JS ] received at this Inquest it does seem to me essential that there is an urgent and comprehensive review of the pre - sentence exercise , the allocation process and the availability and provision of [ LASCHs ] . The statistics indicate that more young offenders are being sent to custody without a proportionate increase in [ LASCHs ] to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable . ...

It seemed clear to me that the allocation of disturbed and vulnerable young children ( typically DATE boys ) should be determined on a needs basis and not a resources basis . This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief , mistaken or not , that recommendations , such as that contained in the pre - sentence report and endorsed by the Sentencing Judge can be implemented ...

In all the circumstances , and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest , I consider that the ORG should take the form of a Public Inquiry where all interested parties can make their views known . ”

On DATE the Secretary of ORG responded to the Coroner that a public inquiry was not necessary given CARDINAL reviews which he had initiated as regards the broader issues underlying JS’ death :

“ In fact the new ORG [ “ ORG ” ] , established by the Government , and which is chaired by the Lord Chief Justice , is currently considering new guidelines on sentencing for robbery . I think it is right for the [ ORG ] to be the body which addresses the issues arising from [ JS’ ] sentence , and I am formally asking the [ ORG ] to do this . I understand why you wanted to recommend a public inquiry to tackle this , but I think that the [ ORG ] does provide the most appropriate forum .

The operational issues you drew attention to are important and need to be looked into by someone with the necessary expertise to identify the realistic scope for improvement . I am asking PERSON , a former Assistant Chief Inspector of ORG , to do this . PERSON conducted the recent inquiry into the death of [ X ] . I enclose a copy of his terms of reference .

The configuration and development of the juvenile secure estate is a longer - term issue , which the [ ORG ] is addressing as part of its work on a new vision for the future of juvenile custody - on which it will be putting proposals to Ministers DATE . We have asked the [ ORG ] to take full account of the concerns expressed in the verdict of the inquest jury and relayed in your letter . ”

In response to the applicant ’s request for a public inquiry , on DATE the Parliamentary Under - Secretary essentially repeating the above response of the Secretary of ORG . By letter dated DATE the applicant was again informed that the Secretary of ORG did not intend to hold a public inquiry .

On DATE the Coroner wrote to the Secretary of ORG re - expressing his concerns about the failure to hold a public inquiry . He welcomed the above - noted CARDINAL lines of inquiry but was concerned that they might not adequately coordinate between each other .

On DATE ORG ’s ORG issued its Third Report of Session DATE on Deaths in Custody . Referring to JS’ death and noting that there had never been a public inquiry into the death of a child in custody , it recommended a public inquiry and , further , that LASCHs should be used wherever possible with use of prison custody reduced to an absolute minimum . The Government ’s detailed response to the ORG was published on DATE and it , inter alia , referred to the CARDINAL internal reviews and the Inquest into LOC death . The CARDINAL concerns of the Coroner would each be addressed by an appropriate review : the appropriateness of the sentence would be addressed by the ORG , the effectiveness of pre - sentence and placement procedures would be addressed by an operational review by PERSON and the ORG would review whether the juvenile secure estate as then configured was able to fully provide for vulnerable young people . The ORG firmly believed that those measures were the most appropriate , useful and focussed .

“ The Government agrees with the ORG ’s view that [ ORG ] should be used wherever possible for children , with the use of ORG custody reduced to an absolute minimum . The Government uses only [ ORG ] and comparable places in secure training centres for children DATE , and for the more vulnerable DATE . ... [ A]ny sort of custody for young people should be a last resort , and that approach is enshrined in legislation .... For those young people whom the courts do send to custody , the [ ORG ] seeks to make the best possible use of available accommodation , taking full account of age and other factors that contribute to vulnerability . [ ORG ] and [ STCs ] provide for the youngest trainees . It would not be appropriate for these young people to mix with older juveniles , who are generally placed in a [ YOI ] . The most vulnerable DATE are also held outside [ YOI ] . The [ ORG ] considers that more provision is needed for vulnerable CARDINAL and DATE boys , and its recent consultation paper Strategy for ORG proposes a new form of ‘ intermediate’ accommodation , with smaller - scale units and more intensive staff support for trainees , which would address this need ...

The juvenile secure estate has evolved considerably since it was set up in DATE and continues to develop . The Government believes the proposals in Strategy for ORG the consultation period ends on DATE set a clear direction for the future of the estate . ”

On DATE the Secretary of ORG requested the ORG to review the JS case during its current consideration of guidelines for robberies . The ORG considered advice from ORG on sentences for robberies ( notably of the type in JS’ case ) and of juveniles . The ORG published draft guidelines and consulted publicly . In DATE “ The Definitive Sentencing Guidelines on Robbery ” were published by the ORG . The foreword noted that it was not intended to significantly change the prior practice of non - custodial sentences for the majority of young offenders who committed robbery . Certain recommendations were , however , made as regards the factors to be taken into consideration prior to making custodial sentences on young offenders including emphasising the welfare of the child . ORG ( see below ) noted that the applicant was invited to make representations to the ORG but she submitted to this ORG that she could not make an effective contribution to this process as her sole entitlement was to express her views as a member of the public .

Following the adoption of ORG with additional provisions as regards sentencing young offenders ( including a comprehensive list of new community orders and a statutory recognition that a sentencing court must have regard to the welfare of the offender ) , the ORG then published further draft Guidelines ( DATE ) entitled “ Overarching Principles - Sentencing Youths ” , requesting comments by CARDINAL DATE . As regards both the underlying principles / approach to sentencing and the choice of sentencing options ( non - custodial and custodial sentences ) , the draft Guidelines emphasised the necessity for the trial court to consider the welfare of the young offender including the high incidence of mental health issues amongst young people in the criminal justice system , the vulnerability of young persons to self - harm ( particularly within a custodial environment ) and the high risks associated with young offenders in a custodial setting .

The Secretary of ORG also requested the ORG to take full account of the issues raised in the Inquest and by the Coroner in its current work on the configuration and development of juvenile secure estate .

In DATE the ORG published a draft strategy for the juvenile secure estate setting out the assumptions and principles that the ORG would use in developing the secure estate ( including enhanced provisions for vulnerable older boys ) and the steps it intended to take in DATE to deliver these within available resources .

The context of the draft report was described as follows :

“ ... the ORG has sought to incorporate within this strategy the lessons learnt from serious incidents that have occurred in the secure estate for children and young people . This includes a specific request ... to take account of the Coroner ’s concerns about the configuration and development of the secure estate in relation to vulnerable young offenders ( concerns expressed following the inquest into the tragic death of [ JS ] ) . ”

Responses were invited from interested parties . The applicant was given a copy of the draft Report and was asked for her views and advice : she did not make submissions as she considered that it was not an independent inquiry as the ORG would not accept its responsibility in LOC death .

The final report ( entitled “ Strategy for ORG to CARDINAL ” ) described the “ Context ” as including : a central theme of developing secure estate was that services in custody for young people were the same in custody as in the community ; the publication of the Government green paper ( “ ORG ” and the companion document ( “ Youth Justice – the Next Steps ” ) which again underlined the necessity to apply community service standards of child care in custody settings ; the adoption of LAW ( further to the Green Paper ) had explicitly placed responsibility for safeguarding and promoting welfare on , inter alia , providers of custody for children and young people , which was the first time that custody providers had been drawn into mainstream children ’s legislation in such an explicit way ; and it repeated the reference to the lessons to be learned from the death of JS .

The assumptions that underpinned the Strategy were outlined . Custody should be used only as a last resort ( citing LAW on the Rights of the Child ) and the ORG would work with the ORG to agree on an operational definition of “ last resort ” . Custody should be used particularly sparingly for young offenders because of their dependent , developing and vulnerable status and , while proportionately greater use was made of custody for them in GPE , the ORG was committed to developing community - based alternatives in which sentencers had sufficient confidence so that their proportionate use of custody for children and young people would fall progressively and the average daily number in custody was reduced ; the principle , that punishment of custody lies in the loss of liberty itself and not in any gratuitously punitive aspect of the regime , should apply absolutely ; and secure establishments , whatever form they take , were scarce and expensive , and their portfolio and characteristics could only be changed slowly so that the ORG would work closely with existing providers and explore whether additional providers can be encouraged to enter the field . While the demand for places and the Government ’s provision of resources for such places were not determined by the ORG , it actively sought to influence both ; the type of regime or interventions provided in custody should be based on what research considers was effective in preventing children and young people from offending and reoffending ; and the rights of children and young people held in custody should be respected and upheld .

As regards the guiding principles , the ORG ’s strategy was aspirational in the sense that it could not be achieved easily or quickly , given its starting point . The guiding principles of the ORG included ensuring a child - based culture , adequate and targeted training , safeguards and services needed to properly protect and assist young offenders .

Finally , it noted that the present portfolio of provision for children and young people in custody remained less than ideal and that its ambition was to create a suitable secure estate based on the above principles as rapidly as reasonably possible . The speed at which the ORG would achieve its ambitions would depend on the sentencing rates and resources attributed so that even a DATE strategy might be ambitious but the ORG was working with the relevant bodies on these CARDINAL issues . The ORG went on to make detailed proposals for consolidating and enhancing the provision of places and services in the secure estate including for STCs , YOIs and FAC .

It concluded that evidence of independent assessors demonstrated that there had been significant achievements in commissioning secure accommodation for children and young people since DATE , even if much remained to be done . An update to the strategy was published in DATE .

PERSON ( a former Assistant Chief Inspector of ORG and Chairman of the GPE ACPC ) examined the operational issues arising from LOC case and , notably , the roles of the ORG , the ORG as well as the ORG itself . Having sent a draft of the ORG to ORG in DATE , he requested the applicant to make submissions . The applicant ’s solicitors requested a copy of the report . She maintained that she heard nothing further until DATE when PERSON contacted her indicating that a final draft of the ORG had been submitted to the Minister : the applicant again requested a copy of the report and , while PERSON was not at liberty to disclose the ORG , he wished to meet with her . A further request for a copy of the report was made . The applicant was not provided , as she requested , with access to the draft report , and she did not therefore make submissions .

His final report entitled “ Review of the effectiveness of Operational Procedures for the Identification , Placement and Safeguarding of Vulnerable Young People in Custody ” was published by ORG on DATE . The agreed scope of the review , including the agreed Terms of Reference , was described in the ORG as follows :

“ The review will analyse :

- The policies , procedures and practices for the placement of young offenders , taking account of any recommendations that the [ ORG ] or ORG have made since [ JS’ ] death , and whether further improvements can be made . The review will refer to ORG investigation , ORG on [ JS ] undertaken by the ORG and the work commissioned by ORG and the ORG ACPC Chapter CARDINAL review . These contain recommendations that encompass both correctional services and the safeguarding of children .

The review will consider :

- Whether the information and documentation that a [ ORG ] prepares for sentencers on young people at risk of a custodial sentence / placement is adequate and appropriate , taking into account the work that the ORG is doing on the management of risk in the community .

- Whether improved guidance is needed on the [ ORG ’s ] assessment of vulnerability or risk .

- Whether existing methods for the transfer of documentation between the [ ORG ] , the court , the [ YJB ] Placements Team and the receiving establishment need improvement .

- The adequacy of YOI reception procedures and arrangements for the care of vulnerable trainees .

- The appropriateness of protective clothing for young offenders at risk of self - harm .

- Whether relevant changes are needed to staff training , in particular regarding the quality of the Asset assessment form , the risk of harm section and advice that the ORG is producing for [ YOTs ] : and the reception and care of vulnerable trainees .

The review will be a fundamental part of informing the family of [ JS ] about progress and ensuring action is undertaken by the key agencies following his death .

The review , in addition to findings on the matters listed above , will include a summary account of all investigations that have been conducted into [ JS’ ] death and the operational issues arising from them . It will outline any implications for the juvenile secure arrangements as a whole and identify any recommended improvements . The review may make recommendations to the Minister on any good practice that is relevant to or becomes apparent during the review . ”

The Report went on to highlight the main themes arising out of the CARDINAL internal investigations and the Inquest and from the terms of reference . It summarised the conclusions of the investigations and Inquest , the subsequent domestic developments and any further recommendations :

As to the “ Appropriateness of Placement ” , the ORG stated :

“ All of the Investigations into the circumstances of the death in custody of [ JS ] concluded that young men who presented his level of risk are not appropriately placed in YOIs and that every effort should be made to secure their placement in a [ ORG ] . There should be consideration of the development of discrete facilities within the YOI sector for young people demonstrably at risk of self - harm or suicide . ”

As to “ Quality of Assessment Work and the Management of Risk ” :

“ All the Investigations concluded that , by CARDINAL means or another , the court considering [ JS’ ] sentence had received explicit advice about his vulnerability , his history of self - harm and attempted suicide . Comparison was drawn between the quality of the pre - sentence report and the Asset assessment , the latter being considered incomplete and lacking in supporting evidence . ”

As to “ Placement of children and young people at High Risk in the ORG ” :

“ All the Investigations closely examined the operations of ORG . There was a generally agreed conclusion that , accepting the complexity of the team ’s task and the difficulties inherent in managing CARDINAL sectors with differential levels of availability , more clarity needed to be introduced into the placement arrangements . Issues concerning the quality and transmission of information , and the arrangements for transfer between placements were also highlighted . ”

As to “ Reception of young people into YOIs ”

“ The Investigations into [ JS ] death concluded that at his admission all reception procedures in force at that time were carried out satisfactorily and that [ JS ] received a high level of care and attention . However , all CARDINAL Investigations expressed reservation and uncertainty about the robustness of the transmission of information between the [ ORG ] and the YOI ; in particular the timely availability of his psychiatric history . “

As to “ Care and Sentence Planning ” :

“ CARDINAL of the key issues identified by the various investigations into the death of [ JS ] related to the arrangements to plan for his stay at the YOI . There were concerns about the organisational arrangements for the planning meeting and its optimum timeliness . Some of the investigations recommended that a much shorter time than ORG ... of within DATE of admission should now be adopted . The ORG also expressed concern about arrangements for recording at YOIs ”

As to “ Provision of Health Care ”

“ Each of the CARDINAL Investigations into the death of [ JS ] concluded that the care and attention given to PERSON by the medical , nursing and YOI staff at the YOI ORG was of good quality and appropriate to his level of need . There was unanimous criticism of the physical state of ORG . ”

As to “ Management of self - harm and suicide in YOIs ”

“ Overall , the Investigations into the death of [ JS ] concluded that the YOIs suicide awareness strategy was sound and that it was applied with care and attention . ORG recommended that some tightening of procedures would improve effectiveness .

As to “ Accommodation of young people at risk in ‘ safer’ cells :

“ When in ORG at PERSON , [ JS ] was subject to a prescribed TIME observation regime . As [ JS ] died within TIME of the last recorded observation , the FAC ORG recommended that YOIs adopt a TIME observation interval where young people are assessed as at serious risk of self - harm and are accommodated in a ‘ safer’ cell . ORG recommended continuous , direct observation in all other circumstances . ORG recommended that telephone conversations of trainees under ‘ at ORG supervision be monitored . ”

As to “ Use of Protective Clothing ”

“ At the [ the Inquest ] the Jury were concerned to learn about the use of protective clothing and recommended a review of the practice . ”

As to “ Anti - Bullying Strategies ” :

“ The Investigations into the death of [ JS ] all agreed that CARDINAL aspect of YOI life that he feared or that fed his apprehension about his sentence was the threat or belief that he would be subject to bullying should he move from ORG to a residential unit . ”

The conclusion in the executive summary of this report noted :

Since [ JS’ ] tragic death , a wide range of measures have been taken to improve safeguarding of young people in [ YOIs ] . This [ operational review ] has carefully examined them and made recommendations for improvement . The ORG and ORG have shown a commitment to change and have developed a set of policies and procedures that focus directly on safeguarding issues and have the potential capacity to deliver a more effective and safer service . But much more can be and needs to be done . ”

On DATE the applicant requested leave to apply for judicial review arguing that CARDINAL central issues regarding the death of JS remained unresolved despite the Inquest : the extent to which the sentencing policy resulted in JS being detained in conditions that gave rise to an unacceptable risk of suicide and , secondly , the reasons why JS was allocated to a ORG rather than a ORG ( including any lack of resources contributed to that allocation ) . The applicant maintained that the Secretary of ORG , in deciding not to convene a full public inquiry , had failed to comply with his duty under LAW to investigate the circumstances of the death of JS . The Secretary of ORG argued that policy issues were beyond the scope of LAW and , alternatively , that the combination of the CARDINAL internal investigations , the Inquest and the CARDINAL reviews proposed by the Secretary of ORG satisfied the requirements of LAW . On DATE the applicant was granted leave to apply for judicial review . By judgment delivered CARDINAL DATE ORG dismissed the judicial review proceedings . On DATE leave to appeal to ORG was granted .

On DATE ORG rejected the appeal .

The principal judgment was that of Lord Justice PERSON . He noted the evidence at the Inquest to the effect that JS should not have been at PERSON but at a ORG , that he would have been placed in a YOI even had the judge ’s remarks been considered by the ORG and , given the available resources , it was almost inevitable , or overwhelmingly likely , that JS would go to a YOI . The trial judge was not at fault : his sentence was lawful , he specifically requested that information as to JS’ vulnerability be passed to the appropriate authorities and he was not obliged to inquire further since the duty to place offenders is upon the Secretary of ORG . While Lord Justice Pill did not exclude that a sentence could itself breach ORG CARDINAL of the Convention , the present sentence did not .

The evaluation of the circumstances in which JS died was “ thorough and no complaint about it is made in an LAW context ” . Where failures were identified , however , investigation of the facts did not complete performance of the ORG ’s obligations “ unless consideration is given to effecting improvements ” ( Lord Justice PERSON referring to domestic jurisprudence and to PERSON v. GPE , ( no . CARDINAL , DATE ) . He continued :

“ Where the failures are of the kind identified in the present case , I do not consider that the ORG ’s statement in PERSON that “ wider questions ” fall outside the scope of LAW is , as the law has now been interpreted , applicable to render unnecessary enquiries beyond the factual investigation provided by the Inquest . The statement in GPE that detailed investigation of policy issues may not be necessary was in the context of a defective investigation of the facts . Such a defect does not necessarily give rise to policy issues . ...

The evidence at the Inquest revealed a worrying situation with regard to the detention of young offenders . On the evidence , vulnerable young offenders , such as [ JS ] , have been detained in conditions unsuitable for their safety and their lives . That having been revealed in a properly conducted Inquest , there is , in my judgment , a duty upon the Secretary of ORG to investigate further what remedial action can be taken . Thorough investigation of facts at an Inquest would have little value in preventing a repetition and in maintaining public confidence , unless followed up . ”

As a fact finding tribunal , the Inquest jury operated effectively . However , the jury could not be expected to give answers to questions of resources and policy which could provide reliable guides to an improvement in conditions .

However , there had been a substantial public debate and it was continuing . The investigations , assessments and debates in progress were such that the applicant had not established that the Secretary of ORG was in breach of LAW by failing to convene a public inquiry :

“ I am far from persuaded that setting up a public inquiry is the only way in which the obligation under LAW can be discharged in this case . It is not a case in which the respondent , either expressly or by inaction , has failed to confront the issues which have emerged or failed to give serious consideration to possible improvements . The combination of the Inquest and the measures taken , including the input into the deliberations of the ORG , have achieved compliance with the LAW obligation .

Questions of sentencing policy and of the allocation of resources are essentially for collegiate consideration and decisions by the Government , following procedures which are well established , including those by which guidance is given to judges . I can not hold that the only appropriate action is for a judge , however eminent , to be given the task of resolving such issues , at or following a public inquiry . ”

As to the participation of the family of JS in the investigation , Lord Justice PERSON noted that the family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of ORG . They had also been invited to make representations to the ORG .

“ The bereaved family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of ORG . They have been invited to make representations to the ORG . It is recognised that they can make an input into questions of policy and resources but , because broad issues of public concern are involved , many other factors have to be taken into account and involvement in those issues can not be expected to be to the same degree . Participation in issues of sentencing policy and the allocation of resources are in a different category from the investigation of facts in the particular case .

He concluded :

“ If I am right that the LAW duty may extend beyond a factual investigation into a search for improvements , issues of policy may arise . In addressing them , the appropriate extent of the family ’s involvement required , however serious the impact of the events upon them , is likely to be less than with the investigation of the facts . I do not accept that concern for the family ’s involvement imposes an obligation on the Secretary of ORG to hold a public inquiry .

Lady ORG agreed with the above reasoning and added that a distinction was to be drawn between “ legal and political questions ” . The applicant could not , by way of individual rights under LAW , intervene in the political process which determined the allocation of resources as this would be to carry Convention rights further than LAW jurisprudence required ( citing ORG and Others v. the GPE , no . CARDINAL/CARDINAL , ORG . DATE , ORG p. CARDINAL ) .

On DATE ORG dismissed the applicant ’s appeal : it did not raise an arguable point of law of general public importance which ought to be considered by ORG , bearing in mind that the case had already been the subject of judicial decision and reviewed on appeal .

The main custodial sentence for young offenders is a ORG , it amounts to a sentence to custody of DATE and it can be awarded against those of DATE . Section CARDINAL of ORG ) Act DATE ( “ the CARDINAL Act ” ) provides :

“ A detention and training order is an order that the offender in respect of whom it is made shall be subject , for the term specified in the order , to a period of detention and training followed by a period of supervision . ”

Accordingly , DATE of the sentence is spent in custody whilst DATE is spent in the community under the supervision of the ORG .

Section CARDINAL(CARDINAL ) of MONEY provides that the ORG shall be served in such secure accommodation as may be determined by the Secretary of ORG or by an authorised body . The ORG exercises this role .

The ORG was established in DATE ( LAW DATE , the DATE LAW ) to develop , in place of ORG , comprehensive sentencing guidelines for the courts to apply . The ORG is chaired by the Lord Chief Justice and has CARDINAL further judicial members ( appointed by the Lord Chief Justice ) from every tier of court that deals with sentencing in criminal cases . CARDINAL non - judicial members ( experienced in policing , criminal prosecution , criminal defence and the interests of victims ) are appointed by the Lord Chancellor , after consultation with the Lord Chief Justice and the Home Secretary . The ORG receives advice from ORG ( which itself consults widely before tendering that advice ) . The ORG then produces a draft guideline on which it consults and the final guidelines , amended as appropriate following consultation , are published in final form DATE .

The ORG is an executive non - departmental public body , created by LAW DATE . At the relevant time it was funded and overseen by ORG , and the relevant Secretary of ORG appointed its ORG members ( CARDINAL ) .

The ORG supervises the youth justice system in GPE and GPE . It advises the Secretary of ORG on the operation of , and standards for , the youth justice system ; it monitors the performance of the youth justice system ; it commissions secure estate for young people ( it spends PERCENT of its budget on providing custodial places ) ; it sets and promotes the best standards for these facilities ; it places children and young people remanded or sentenced to custody in appropriate accommodation within the secure estate ; it makes grants to local authorities and other bodies to support the development of effective practice ; and it commissions research and publishes information .

The bulk of young men sentenced to DTOs are placed in YOIs managed by the prison service . YOIs hold young offenders DATE . There are some differences between YOI and adult prison regimes : the ORG has a better staff / offender ratio ; TIME of education per week ; and its overall objectives are helping the detainee improve behaviour , develop practical skills and prepare for employment .

STCs are purpose built centres for young offenders up to the age of CARDINAL whose regimes are constructive and education - focused . STCs have a better staff / offender ratio and are smaller in size than YOIs , which means that individual needs are met more easily .

ORG are designed to focus on very vulnerable children who present a range of serious physical , emotional and psychological problems . They are run by local authority social services departments , overseen by ORG and ORG and Skills . They have the best staff / young person ratio of all and are generally small facilities ( CARDINAL beds ) . ORG accommodate , not only juveniles on secure remand or following a ORG , but also children who are being looked after for welfare or behavioural reasons . LASCHs generally accommodate young offenders ( DATE ) , girls under DATE as well as boys who are DATE assessed as vulnerable .

An Inquest must be conducted where a body lies in the district of the Coroner and there are grounds to suspect that the person died a violent or an unnatural death or a sudden death of which the cause is unknown ( section CARDINAL(CARDINAL ) of LAW DATE ) . The Inquest must determine the identity of the deceased as well as how , when and where he came by his or her death ( section CARDINAL(CARDINAL((b ) of the CARDINAL Act ) but the Coroners Rules DATE provide that the verdict shall not accord blame to individuals for wrong doing or otherwise ascribe specific responsibility for death ( Rules CARDINAL and DATE .

Rule CARDINAL provides that :

“ A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly . ”

The ORG noted its extreme concern at the conditions experienced in detention and that children did not receive adequate protection or help in YOIs and it noted a very poor staff / child ratio , high levels of violence , bullying , self - harm and suicide , inadequate rehabilitation opportunities , solitary confinement in inappropriate conditions for a long time as a disciplinary measures or for protection , and the fact that girls and some boys in prison were still not separated from adults .

Following his visit to GPE in DATE , the Commissioner reported on numerous matters including the detention of juveniles ( DATE ) and young offenders ( DATE ) .

GPE had one of the highest rates of juvenile detention in LOC . Having been in line with the NORP average during DATE , the numbers of juvenile and young offenders increased significantly DATE before stabilising . Those high rates of incarceration had inevitably impacted on the conditions of detention . Special attention to the educational and psychological needs of juveniles and young offenders was required if their detention , at such a critical time in their development , was to contribute to their rehabilitation and reinsertion and it was difficult to conclude that those imperatives were being entirely satisfied . Indeed the overall impression of the Commissioner was of a detention system that placed too much emphasis on punishment and control and not enough on rehabilitation .

As far as juveniles were concerned , the Commissioner was informed that their conditions of detention had improved in DATE with greater investment in FAC and STCs and in the services provided to children detained in DATE . However , he noted CARDINAL serious shortcomings . He was struck on his visit to CARDINAL YOI by the apparent lack of appropriate psychological care and the inadequate educational assistance provided . His discussions with other actors suggested that these problems arose , to a greater or lesser extent , throughout the juvenile and young offender detention estate .

In its response of DATE , the ORG referred to a comprehensive review of each custodial establishment where young people were held , to new measures to address self - harm and suicide , to a new staff training package with an enhanced child protection module and to further funding for CARDINAL local authority staff to undertake duties in YOIs .

The Chief Justice of ORG expressed the following opinion in this case :

“ In giving this judgment we are not seeking to set new guidelines . If we were intending to do so , we would have sought the advice of ORG before giving this judgment . Instead , we are seeking to draw together the principles which are already clearly established by the reported decisions of this court . Before coming to the facts of the individual applications , we wish to set out certain information which has been obtained by research conducted on behalf of ORG . It is published as Study CARDINAL , dated DATE , entitled “ Mobile Phone Theft ” . The research contains certain findings as to the level of mobile phone thefts and robberies and identifies a marked increase in the incidents of such offences . ... MONEY of those asked said that they had been victimised at least once . The risk of phone theft for those in DATE is CARDINAL times higher than that for adults . The results show a substantial growth involving the theft of telephones . Figures from CARDINAL police forces suggest that the number of recorded phone thefts has at least doubled CARDINAL . There was an increase in the proportion of robberies involving telephones from MONEY in DATE ( CARDINAL phone robberies ) , to MONEY in DATE ( CARDINAL phone robberies ) . No doubt part of the increase was due to the greater phone ownership during that period . ...

Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences . Those who do so must understand that they will be punished severely . Custodial sentences will be the only option available to the courts when these offences are committed , unless there are exceptional circumstances . That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions . However , both those factors are very important when a judge comes to decide on the length of sentence . ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


CASE OF DZELADINOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

At TIME on DATE , a group of GPE , who were leaving a restaurant where they had attended a NORP circumcision celebration , were involved in a fight with GPE , a wrestling champion who worked as a fitness instructor for the police force . PERSON reported the incident to the local police and around QUANTITY police officers went to the restaurant in search of the alleged attackers . When they entered the restaurant , they allegedly started to assault the guests .

According to the applicants , they were beaten with truncheons , punched and kicked . The fifth applicant said that he was grabbed by the hair and beaten all over his body ; he was then handcuffed and taken to the police station where he was subjected to severe ill - treatment . The second applicant also complained that he had been beaten , despite his wife ’s attempts to protect him . The second and fourth applicants said that they were taken to a police station where they were kept for TIME and beaten by the police officers , who repeatedly insulted them on account of their ethnic origin .

The third applicant was DATE pregnant when she was beaten in the restaurant . Following the raid , the police were asked to arrange for her to be taken to hospital , but refused . She somehow managed to get to the hospital , but the doctors refused to examine her when they found out that her assailants had been police officers . She said that she was severely distressed and in pain throughout the night . The following day , she was examined in the same hospital , but no injuries or problems were detected .

It was alleged that CARDINAL other GPE asked for medical help TIME , but they were all turned down as they could not pay for treatment .

DATE , in response to an earlier police summons , the first applicant went to the police station where he was allegedly beaten for TIME and insulted on account of his ethnic origin . He said that some QUANTITY police officers had hit him with a truncheon , and punched and kicked him . A gun had been held to his head , at which point he had falsely confessed to his involvement in the fight with GPE

The applicants , in support of their application before the ORG , provided photographs of bruises on their backs , heads and buttocks .

At TIME on CARDINAL DATE the police officers on duty received a telephone call saying that CARDINAL GPE , who had attended a circumcision party in a restaurant , had stopped a car and physically attacked the driver ( GPE ) . CARDINAL police officers went to the scene . After GPE had identified the first applicant as being among the attackers , the police officers requested him to leave the group and get into the police car . Although the police officers did nothing to provoke the group , CARDINAL GPE started to throw stones and bottles causing facial injuries to CARDINAL of the officers . The police car was also damaged . As the police officers were prevented from arresting the first applicant , who had fled the scene , and as they feared for their own safety , they radioed for backup . CARDINAL of the officers fired QUANTITY shots in the air to disperse the crowd . A patrol of CARDINAL more officers arrived at the scene . Another QUANTITY shots were fired in the air .

As these attempts to restore order proved unsuccessful , the police officers used batons . After the crowd had been broken up , the police took various people , including the second and fifth applicants , to the police station . After being questioned about the assault on GPE , the second and fifth applicants were released . It was established that they had been among the crowd , but had not been involved in the physical attack on GPE No force was used against them at the police station . According to the medical records of ORG , none of the persons apprehended or involved in the fight had requested medical assistance as a result of the police intervention . On the other hand , QUANTITY police officers had been examined and QUANTITY of them were found to have sustained minor injuries .

According to the medical records , at the request of a pregnant woman , a medical team had gone to the scene and brought her to the hospital . An entry in the hospital ’s medical records of CARDINAL DATE showed that CARDINAL ORG or PERSON had been “ urgently ” admitted with bruising to the head . CARDINAL doctors , a surgeon and a gynaecologist , had examined her and a note had been made in the record : “ no funds – fight ” . No injuries to the foetus or other pregnancy - related trauma were detected . On DATE the same findings were recorded by another doctor in the medical records of ORG , who , it was noted , had frequently requested medical assistance in the past for injuries sustained in fights and had sustained a black eye on the most recent occasion . An eyewitness to the incident stated that a pregnant woman had hit a police officer over the head with a bottle .

The Government based their version of events on a number of police reports that had been compiled DATE and DATE .

On DATE the chief of the local police drew up a report concerning the coercive measures that had been used during the incident . It reads , inter alia , as follows :

“ ... on DATE a phone call was received [ to the effect ] that GPE had been physically attacked by a group of GPE ... Mr S. , Mr A. and Mr M. [ police officers ] arrived at the scene ... GPE identified CARDINAL of the attackers ... he was requested to get into the police car . The person concerned came forward without resisting ... , but when a van arrived ... the crowd attacked it , started to drag Mr S. and Mr M. ... they started to throw stones , bottles and other objects at the officers and the police car . The suspect fled ... Backup was immediately requested ; CARDINAL police officers arrived after TIME ... CARDINAL people threw stones , bottles and other items ... police officers GPE , ORG and ORG were hit ... Physical force and rubber batons were used against several GPE by the officers FAC , GPE , GPE , GPE , ORG , ORG , ORG , GPE and GPE ... because the crowd continued to throw stones and other objects at the officers despite warnings ( CARDINAL shots fired in the air ) ... ”

In the telegram , the police described the incident and stated that CARDINAL people , including the second and fifth applicants , had been brought to the police station for questioning . It said that QUANTITY police officers had sustained minor injuries in the intervention in which stones and bottles had been thrown at the police officers .

In a document of CARDINAL DATE , the PERSON police indicated that according to the statement of an eyewitness , the incident had caused considerable alarm . This is how the eyewitness described the incident :

“ ... my wife and I were extremely unnerved by the incident and the intensity of the attack by the GPE , first , against the occupant of the car [ referring to GPE ] , and then against the police officers who had done nothing to anger the crowd . It was simply that the savage nature [ of the attack ] was clear to see and incited by an inebriated group of people who had been celebrating a circumcision ... ”

Concerning the use of coercive measures , the report stated , inter alia :

“ ... it is considered that the use of rubber batons was justified for the following reasons : [ there had been an ] unmotivated and brutal attack on GPE ; the authorised officers had been prevented from carrying out an official activity , i.e. identifying the perpetrator of an offence , although no coercive measures had been used against the person concerned or anyone else ; the life and physical integrity of the authorised officers had been endangered by a sustained attack which was liable to cause grievous bodily harm or fatal injury ; officials were injured and a police car damaged ; orders by the police officers were disobeyed and the attack had continued even after shots were fired in the air ... ”

The document continued :

“ ... some [ sections of the ] media and ORG associations are minimising or ignoring the objective circumstances and the responsibility of the perpetrators and the individual involvement of each of the participants in the group , tendentiously asserting that the police targeted the GPE population , whereas they were not influenced by the ORG ethnic affiliation , but merely responded to the concrete circumstances of the incident ... ”

It was further noted that a group of CARDINAL GPE and PERSON , a former member of ORG , had gathered outside the local police station afterwards .

PERSON , GPE ’s wife , who was in the car at the time of the incident stated , inter alia :

“ ... Meanwhile , CARDINAL of the participants went to the restaurant where the GPE were holding a wedding party and most probably told lies [ about the incident ] . A large group of people came out of the restaurant causing total chaos . When the officers got out of the car , they started throwing stones and other objects . A horse cart was standing nearby and a man gave wooden sticks to the group to use against the police . I would stress that women and children stood in front of the officers with the men behind . There was a pregnant woman among the group of people . My husband took her out of the group so that she would not be injured ; he stopped a car which took her to the city hospital ... ”

The first applicant stated , inter alia :

“ ... While he [ the police officer ] was taking me to the police van , a scuffle started as many people gathered around . At that moment , the police officers fired CARDINAL shots in the air to disperse the crowd . I did not see any stones , bottles or pieces of wood being thrown at the van . When the officer released my arm , he launched himself at the group with a truncheon . I escaped and went home ... ”

Describing the circumstances concerning the fight with GPE , the fourth applicant stated , inter alia :

“ ... while I was pulling PERSON aside , PERSON punched me once in the face ... I think that there were CARDINAL people at the scene ... ”

The fourth applicant stated , inter alia :

“ ... It is not true that he [ GPE ] did not hit anyone . He hit me with his elbow in the chest and punched me in the left eye . I felt intense pain , I found a bottle and struck GPE over the head ... I had blood in my eye from GPE ’s punch and could not see ... ”

PERSON identified the first applicant as CARDINAL of the attackers of her husband , describing him as a person “ with long hair and dressed in black ” . The first applicant confirmed that he had long hair and had been wearing black clothes .

Mr GPE , an eyewitness , stated , inter alia :

“ ... a large group of GPE gathered ... they started to throw stones and bottles at the police officers who had arrived at the scene . I think that CARDINAL of the officers concerned fired to restore order ... ”

PERSON , an eyewitness , stated , inter alia :

“ ... GPE firstly hit NORP [ the fourth applicant ] in the eye and then NORP hit him with a bottle on the back of the head ... ”

On DATE ORG filed a criminal complaint against QUANTITY persons , including the first and fourth applicants , for assault .

On DATE the public prosecutor lodged an indictment with the court alleging assault ( насилство ) on GPE under LAW . It was noted in the indictment , inter alia , that around a CARDINAL people had witnessed the incident .

On DATE ORG Instance found the first and fourth applicants guilty of taking part in the fight and sentenced them to CARDINAL and CARDINAL months’ imprisonment respectively . It acquitted a co - defendant , PERSON , as he had attempted to separate those involved . The court admitted a considerable amount of evidence including oral evidence from the accused , GPE and his wife ; evidence from CARDINAL eyewitnesses and CARDINAL doctors concerning GPE ’s injuries ; and a medical certificate of CARDINAL DATE on GPE The court established that PERSON , CARDINAL of the accused , had left the restaurant at TIME While under the influence of alcohol he had gone out into the street and stopped the car in which GPE and his wife were travelling . PERSON had immediately started to bang on the car . When GPE got out , PERSON had attacked him with his fists and kicked him . Shortly afterwards , the first and fourth applicants had joined in , battering GPE with their fists and a glass bottle and kicking him all over his body . GPE had sustained injuries to his head , cuts to his finger and elbow , bruising to his face and damage to CARDINAL teeth . The court rejected the first applicant ’s defence that he had not been involved in the quarrel as contrary to the evidence . It found the fourth applicant ’s argument that he had been involved in the fight with GPE because the latter had hit him in the eye unsubstantiated , as no evidence or medical certificate had been produced in support of that allegation .

On DATE the first - instance decision became final as no appeal had been lodged within the statutory time - limit . According to the applicants , they had not appealed against the decision because the trial judge ’s lack of sympathy with their allegations of ill - treatment and repeated intimidation by the police gave them little hope that they would have any prospect of success on appeal .

On DATE the applicants filed a criminal complaint ( кривична пријава ) for torture with the PERSON public prosecutor ’s office ( Основно Јавно Обвинителство Штип ) against ORG . It was stated in the complaint that after the fight with GPE a large group of police officers had arrived and beaten the guests in the restaurant with their truncheons and fists and kicked them . The applicants alleged that some of the guests had been tied up and beaten at the police station the following day . They also complained that the officers concerned had used force to extract confessions from some of them concerning their involvement in the fight with GPE They said that they had produced photographs and a medical certificate in support of that allegation . They also invited the public prosecutor to take statements .

On DATE the applicants provided the public prosecutor with further photographs as evidence of the police abuse .

On DATE they submitted written statements about the events .

“ ... [ after my release from custody ] I wanted to see a doctor , but assumed that , as with the others , I would not be admitted to the hospital . We have all had to put up with the pains ... ”

After being taken to hospital after the incident , the third applicant stated , inter alia :

“ ... a gynaecologist examined me and sent me home . He told me to visit a doctor on the following DATE ... ”

“ ... After I was released from custody , I went to ORG as I felt unbearable pains all over my body . There , they refused to give me medical care as I had no funds . I was told that ( medical services ) for injuries sustained in a fight have to be paid for ... ”

DATE . The fifth applicant stated , inter alia :

“ ... [ after his release from custody ] ... After TIME , I went to the Štip Medical Centre because of the unbearable pains all over my body . They did not want to examine me , nor did they issue a medical certificate as I had no funds to pay [ for treatment ] ... ”

On DATE the local public prosecutor ’s office requested information concerning the incident from ORG through the ORG public prosecutor ’s office . On DATE the ORG public prosecutor ’s office transmitted this request to ORG . On DATE the local police submitted to the central police authority all the material relating to the incident .

As the local public prosecutor failed to respond to the ORG complaint for DATE , the ORG representative wrote to the Minister of the ORG on DATE informing him about the case .

As they did not receive a reply from the ORG or the local public prosecutor , on DATE the applicants sent another letter to the latter enquiring about the progress of their case .

In a letter dated DATE the local public prosecutor replied that on DATE his office had requested ORG to take steps to identify the offenders , but had not received a reply .

The applicants received no information or acknowledgement about the action that had been taken by the competent national prosecuting authorities in relation to their complaint of torture by police officers .

The provisions relevant to the present case were described in the PERSON judgment ( see PERSON v. the former GPE , cited above , § § DATE ) .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE an investigating judge of ORG ( Županijski sud u GPE ) opened an investigation in respect of the applicant in connection with suspicions that on DATE he had put at risk the life and limb of others by firing shots in his partner ’s flat and that on DATE he had attempted to murder QUANTITY persons by shooting at them in a nightclub . The investigating judge ordered the applicant ’s detention but the applicant remained at large .

The applicant appeared before the investigating judge of ORG on DATE . He was questioned and remanded in custody on DATE .

On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u GPE ) indicted the applicant in ORG , alleging that on DATE he had put at risk the life and limb of others and that on DATE he had attempted to murder QUANTITY persons .

Judge PERSON assumed responsibility for the applicant ’s case as the president of a trial panel of ORG .

On DATE a CARDINAL - judge panel of ORG , composed of Judges D.T. , ORG and ORG , extended the applicant ’s detention on the grounds provided for under LAW § CARDINAL(CARDINAL ) of LAW ( risk of reoffending ) . The relevant part of the decision reads :

“ ... the accused is indicted under count CARDINAL , namely that on DATE in the flat of his partner PERSON he fired CARDINAL shots from a gun at a wall , irrespective of the fact that FAC and GPE . were present in the same room and that he was aware that the bullets could ricochet from the wall and hurt any of the persons present . Under count one , he is indicted on the ground that on DATE in a nightclub , after a verbal dispute with GPE , he fired several times from a gun and then fired all the remaining bullets from the gun at GPE and GPE ... with the aim of murdering them , and GPE ’s life was saved by medical intervention .

The above shows the accused ’s brutality , determination , high degree of criminal resolve and obvious propensity towards such criminal behaviour , all of which , in the opinion of this court , continues to justify the extension of his detention because of the fear that [ if at large ] he would commit a further criminal offence . ”

On DATE a CARDINAL - judge panel of ORG found that the maximum statutory period of the applicant ’s detention had expired and ordered that he be released from detention . Judge PERSON was a member of that panel .

On DATE the Vice - President of ORG of the Zagreb County Court reassigned the applicant ’s case to Judge PERSON because in the meantime Judge PERSON had become a judge of ORG ( PERSON ) .

On DATE a trial panel of ORG , presided over by Judge PERSON , found the applicant guilty of the attempted murder of CARDINAL persons and dismissed the charge of putting at risk the life and limb of others on the ground that the prosecution had withdrawn that charge . The applicant was sentenced to DATE imprisonment .

On DATE the GPE State Attorney ’s ORG lodged an appeal with ORG against ORG judgment , seeking a more severe sentence .

The applicant lodged an appeal against ORG judgment with ORG on DATE , complaining of a number of substantive and procedural flaws , and notably that Judge PERSON had not been impartial . The applicant contended that by being a member of a panel which had extended his pre - trial detention , Judge PERSON had already formed his opinion about the charges against the applicant .

On an unspecified date in DATE , ORG , acting under LAW , forwarded the parties’ appeals and ORG case file to ORG ( PERSON odvjetništvo PERSON ) for their examination and opinion .

On DATE the State Attorney ’s Office of GPE submitted an opinion to ORG on both appeals , however , this opinion was not communicated to the defence . The opinion reads :

“ Please find enclosed ORG case file no . K-CARDINAL/CARDINAL concerning the criminal proceedings against the accused PERSON , charged with the offences under LAW in conjunction with LAW , which was forwarded [ to ORG ] after the [ GPE ] ORG Attorney ’s ORG and the accused ’s lawyer had submitted their appeals ...

As to the appeal lodged by the [ GPE ] ORG Attorney ’s ORG concerning the sentence , we consider that it was correctly pointed out that the [ first - instance ] court sentenced [ the applicant ] to a rather lenient sentence of imprisonment which appears absolutely inappropriate in view of the circumstances of the offence and his personality ... It was correctly pointed out that certain aggravating factors had been significantly underestimated , namely the grave consequences for [ the health of ] GPE and the other victims . Furthermore , the [ first - instance ] court failed to take into account the accused ’s attitude towards the victims and the damage caused by the offences , as well as his lack of any remorse for or apology to the victims . This all should be taken into account in the sentencing procedure and should eventually lead to a more severe sentence as requested by the [ GPE ] ORG Attorney ’s ORG .

As to the appeal lodged by the defence , it is to be noted that there has been no fundamental miscarriage of justice in the proceedings , within the meaning of Article CARDINAL ... of LAW , concerning the impartiality of the trial judge , who [ allegedly ] should have been excluded from the case . In his submission the appellant refers to the case - law of ORG and ORG concerning the exclusion of a judge who presides over a trial panel , having already decided on the accused ’s detention at the pre - trial stage of the proceedings . The case - law of ORG impartiality is presumed until there is proof to the contrary and since in the case at issue there are no objective circumstances which could raise doubts as to the impartiality of the judge who presided over the trial panel , such case - law is not applicable to the present case .

As to the [ complaint alleging ] substantive flaws in that no reference was made to the Articles of the amended LAW , it is to be noted that LAW was not amended as regards LAW and that the court in the present case correctly applied the relevant provision ...

As to the factual findings [ of the first - instance court ] , we consider that all the relevant facts have been sufficiently and comprehensibly established . The [ first - instance court ] based its findings on the report drawn up by the ballistics expert PERSON and , after the assessment of the relevant witness statements , it set out in detail its conclusion that the accused had caused the conflict . Therefore , the argument of self - defence raised in the appeal is not correct because , under the relevant case - law , the person who first drew a gun can not invoke the defence of self - defence . We also find that sufficient reasons have been given as to the existence of all the elements of the offence , as regards the victims GPE and PERSON , as the accused ’s mens rea . The exact place from which he shot the gun was also established without any doubt .

As to the fact that the victim – a policeman [ by profession ] – also had a gun , we consider that this has no bearing on the factual findings set out in the [ first - instance ] judgment . This is because no bullets fired from the [ victim ’s ] gun were found in the nightclub , but CARDINAL unfired bullet . Therefore , the appellant ’s argument that the victim fired his gun is unsupported by the personal and physical evidence . In this connection it is also to be noted that all the relevant facts , other than the statements of the victims and the other witnesses unrelated to the accused PERSON , are supported by a CARDINALD reconstruction [ of the crime scene ] and the report of the ballistics expert M.

Against the above background we propose that the appeal by ORG be allowed and the appeal lodged by the defence be dismissed as ill - founded . ”

On DATE ORG informed the parties that a public hearing would be held on DATE . The applicant ’s defence lawyer , who had represented him throughout the proceedings , was invited to attend but it was expressly stated that the applicant , who in the meantime had been remanded in pre - trial detention until the judgment became final , was not to attend .

On DATE ORG held a public hearing in the presence of the applicant ’s defence lawyer and the Deputy ORG Attorney of GPE ( PERSON državnog odvjetnika PERSON ) .

At the appeal hearing the applicant ’s defence lawyer reiterated the arguments set out in his appeal and the Deputy State Attorney of GPE endorsed the arguments set out in the opinion of DATE ( see paragraph CARDINAL above ) . The relevant part of the summary record of the appeal hearing reads :

“ With the permission of the President , the ... defendant gave the necessary explanations for his submissions , in particular : The defence counsel reiterated the appeal submissions .

The Deputy ORG Attorney of GPE stated that he endorsed the proposal submitted under LAW , ...

After that , at TIME , the President decided that the part of the session at which the parties were allowed to be present had concluded and that the decision which the panel would adopt in the course of the session would be made available to all interested parties by means of the delivery of a certified copy of the decision through the first - instance court . ”

On DATE ORG adopted a judgment in which it upheld the applicant ’s conviction and increased his sentence to DATE imprisonment . The relevant part of the judgment reads :

“ The Deputy ORG Attorney of GPE , after consulting the case file ... in a reasoned opinion of DATE ... asked for the appeal lodged by ORG to be allowed and the appeal lodged by the accused to be dismissed .

The accused PERSON , in his appeal ... asked to be invited together with his defence lawyer ... to the hearing before the appeal court . The request as regards the defence lawyer has been complied with ... , whereas the appeal court has not found it useful to have the accused brought from pre - trial detention ...

The mere fact that the president of the trial panel had ruled on the appellant ’s pre - trial detention is not a reason for excluding that judge from the trial ... Since the appellant failed to substantiate any circumstances which could raise doubts as to the impartiality of the president of the trial panel , his argument appears ill - founded .

The appeal lodged by the ORG Attorney ’s ORG concerning the sentence is well founded ...

The first - instance court ... treated as mitigating circumstances the appellant ’s decent behaviour in court , his relative youth , his lack of previous convictions , the fact that he was unemployed , had no assets and was a father of CARDINAL minor children , CARDINAL of whom was seriously disabled , and the fact that he was charged with attempting to commit criminal offences . His exceptional determination and criminal resolve , as manifested in committing CARDINAL criminal offences putting life and limb at risk , were assessed as aggravating circumstances .

Contrary to the criminal offences committed to the detriment of GPE and PERSON , where no harm occurred – which is an additional mitigating factor that , together with other mitigating factors , could have led to the application of the rules on applying a more lenient penalty – the criminal offence committed to the detriment of GPE resulted in grave consequences since he sustained serious and life - endangering wounds to his vital organs in DATE and at the peak of his career , which was then interrupted by long - term treatment and rehabilitation , although he had not contributed in any significant manner [ to the situation ] , which amounts to an additional aggravating factor . The [ appellant ’s ] behaviour after the commission of the criminal offences , as rightly pointed out in the appeal lodged by ORG , namely that he escaped to another country , together with the lack of any remorse or apology to the victims , amount to additional aggravating circumstances which indicate that the rules on imposing a more lenient penalty should not have been applied in respect of that criminal offence . ”

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , arguing that his right to a fair trial had been violated , inter alia , because of the lack of impartiality of Judge PERSON ; because the submissions of the Deputy State Attorney of GPE to ORG had not been communicated to him ; and because ORG had not examined him prior to increasing his sentence .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , endorsing the reasoning of the lower courts . The decision of ORG was served on the applicant on DATE .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE ) read as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law .

In the case of suspicion of a criminal offence or criminal charges [ being brought ] , the suspect , defendant or accused shall have the right :

- to defend himself in person or with the assistance of a defence lawyer of his own choosing , and if he does not have sufficient means to pay for legal assistance , to be given it free as provided by law ;

- to be tried in his presence , provided that he is available to the court ;

NORP The relevant parts of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , CARDINAL DATE , CARDINAL/CARDINAL ) provide :

“ ( CARDINAL ) Anyone who intentionally begins to commit an offence but does not finish it shall be punished for an attempted offence if the offence at issue is punishable by a sentence of imprisonment of DATE or more or , for any other offence , if the law provides that such an attempt shall be punished .

( CARDINAL ) A perpetrator who attempted to commit an offence shall be punished as if the offence had been committed but may be also punished by a more lenient sentence .

“ Anyone who deprives another of his life shall be punished by a sentence of imprisonment of DATE . ”

At the material time , the relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provided :

“ CARDINAL . The municipal courts , county courts and ORG shall have competence in criminal matters .

“ ORG shall be competent :

( CARDINAL ) to decide as the second - instance court on appeals lodged against decisions of the county courts ;

“ CARDINAL . A judge or lay judge shall be excluded from sitting in a case :

( CARDINAL ) if he has been injured by the offence ;

( CARDINAL ) if he is the spouse , a relative by blood , either lineal , descending or ascending , or collateral to the fourth degree , or related by affinity to the second degree , to the defendant , his counsel , the prosecutor , the injured person , their legal guardian or legal representative ;

( CARDINAL ) if he is a legal guardian , ward , adopted child or adoptive parent , foster parent or foster child to the defendant , his counsel , the prosecutor or the injured person ;

( CARDINAL ) if in the same criminal case he has carried out actions during the investigation , or has taken part in deciding on an objection to the indictment , or if he has taken part in the proceedings as a prosecutor , defence counsel , legal guardian or legal representative of the injured person or the prosecutor , or if he has testified as a witness or as an expert witness ;

( CARDINAL ) if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy .

A judge or lay judge may be recused in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt . ”

“ CARDINAL . A judge or lay judge , as soon as he discovers a ground for exclusion referred to in DATE , paragraph CARDINAL , of this Code , shall discontinue all activity on the case and report the matter to the president of the court , who shall appoint a substitute judge . ...

NORP If a judge or lay judge holds that other circumstances exist which would justify his standing down ( Article CARDINAL , paragraph CARDINAL ) , he shall inform the president of the court thereof . ”

“ CARDINAL . Disqualification of a judge may also be requested by the parties .

NORP The parties may lodge their request for disqualification before the opening of the trial , and if they learn at a later stage of a reason for the judge ’s exclusion ( Article CARDINAL , paragraph CARDINAL ) , they shall submit their request immediately after they have learned of that reason . ”

“ A judgment can be challenged :

( CARDINAL ) for a procedural miscarriage of justice ;

( CARDINAL ) for a violation of LAW ;

( CARDINAL ) for any error of fact ;

( CARDINAL ) in respect of any sanction , confiscation of the proceeds of crime , costs and expenses ordered or any civil claim lodged in the criminal proceedings , and in respect of the decision to publish the judgment . ”

“ CARDINAL . An appeal shall be lodged with the first - instance court in a sufficient number of copies for the court , the opposing party and the defence counsel to reply thereto .

“ The first - instance court shall forward a copy of the appeal to the opposing party , which may submit a reply . The appeal together with all the files shall be forwarded by the first - instance court to the second - instance court , which shall also take into account any reply to the appeal received before its session begins .

“ CARDINAL . When the second - instance court receives the files , the president of the appeal panel shall assign a reporting judge . If the case concerns an offence which is subject to public prosecution , the reporting judge shall forward the case file to the competent ORG Attorney , who shall examine it and then return it to the court without delay .

When the ORG Attorney returns the case file , the president of the panel shall schedule the session of the panel . The ORG Attorney shall be notified of the session .

“ CARDINAL . The accused and his defence counsel and any subsidiary prosecutor or private prosecutor who , within the time - limit for appealing or replying to an appeal , have requested to be notified of the session or have proposed that a trial be held before the appellate court , shall be notified of the session . The president of the panel , or the panel , may decide that the parties should be notified of the session , even if they have not so requested , if their presence would be useful for the clarification of the case .

NORP If the accused is in pre - trial detention or is serving a sentence [ of imprisonment ] and has defence counsel , his presence shall be ensured only if the president of the panel , or the panel , considers it expedient .

NORP The session of the panel shall begin with the report by the reporting judge on the facts of the case . The panel may request such explanations as are necessary from the parties present at the session concerning the appeal submissions . The parties may propose that certain files be read out in order to supplement the report and may , subject to the approval of the president of the panel , give such explanations as are necessary of the positions stated in their appeal or their reply to the appeal , without repeating the contents of the report .

“ CARDINAL . The second - instance court shall examine the first - instance judgment in the part and on the grounds referred to in the appeal ( LAW .

“ CARDINAL . The second - instance court may , after a session of the appeal panel or after a trial , reject the appeal as being lodged out of time or as being inadmissible , or dismiss the appeal as ill - founded and uphold the first - instance judgment , or quash the first - instance court ’s judgment and remit the case to it for a retrial , or reverse the first - instance judgment .

In case no . I Kir-CARDINAL/CARDINAL , concerning a criminal investigation in connection with a suspicion of offences of forgery of official documents under LAW , on DATE the President of ORG ( PERSON ) , further to a request by the defence , excluded a judge , GPE , from the case . He found that , although the request for exclusion of the judge had been highly vague , the judge had to be excluded in order to avoid any doubt as to his impartiality . Judge PERSON himself rejected any objection as to his impartiality but shared the view that he should be excluded to avoid any such objection from the defence .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

On DATE the applicant filed a suit against ORG before the single - member first instance civil court ( monomeles protodikio ) of GPE about unfair dismissal submitting , inter alia , that her compensation had not been calculated correctly .

The case was heard on DATE .

On DATE the court found in favour of the applicant declaring her dismissal null and void and ordering the defendant to pay her MONEY , by way of salary arrears , and part of her costs and expenses . The applicant served the decision on ORG on DATE .

On DATE ORG appealed . The appeal was heard on DATE .

On DATE ORG ( Efetio ) of GPE upheld the appeal and considered that there was no unfair dismissal . According to the court , the applicant had changed duties before her dismissal ; as a result , ORG , when calculating her compensation , was not obliged to take into consideration a special allowance attaching to her previous duties .

On DATE the applicant appealed in cassation . A hearing was fixed for DATE . On CARDINAL DATE the applicant submitted additional grounds of appeal . On DATE the judge rapporteur submitted his report . On DATE the court decided to adjourn the examination of the appeal at the parties’ request . The appeal was heard on CARDINAL DATE . On DATE ORG ( PERSON ) quashed the judgment of ORG considering that the latter had ignored some evidentiary material . The case was sent back to ORG for re - examination .

On DATE the applicant asked ORG to fix a hearing . The case was due to be heard on DATE but the lawyers were on strike . On DATE the applicant asked the court to fix a new hearing date . On DATE the court adjourned the examination of the case . On DATE the applicant ’s case was heard by ORG , composed of different judges from those that had issued the judgment of CARDINAL DATE . On CARDINAL DATE ORG found in favour of ORG considering that the applicant had accepted that she had changed duties before her dismissal and that she was not entitled to the special allowance . Although the applicant was entitled to another allowance , ORG had not acted in bad faith in failing to take the latter into consideration when calculating her compensation . As a result , although the applicant could claim additional compensation , her dismissal was not null and void .

On DATE the applicant appealed in cassation for the second time . ORG heard the appeal on DATE and on CARDINAL DATE it quashed again the judgment of ORG on the ground that its reasoning was contradictory , vague and inadequate . The case was sent back to ORG for re - examination .

On DATE the applicant asked ORG to fix a hearing . ORG heard the appeal on DATE and on CARDINAL DATE it found again in favour of ORG because the applicant , prior to her dismissal , had accepted that she should not be receiving any of the allowances in question .

On DATE the applicant appealed in cassation for a third time . ORG heard the appeal on DATE and dismissed it on DATE . The text of the jugement was finalised on DATE . It was signed by the President on CARDINAL DATE . ORG served the judgment on the applicant on DATE .