Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lived before his arrest in GPE . He is currently detained in GPE IZ-CARDINAL/CARDINAL remand prison .

On DATE the applicant was arrested on suspicion of drug trafficking .

On DATE he was charged with large - scale drug trafficking committed in conspiracy with other drug dealers . On DATE ORG ( Ufa ) examined the investigator ’s request to remand the applicant in custody . The court held as follows :

“ Mr PERSON . A. is charged with a serious offence , which is punishable by a term of imprisonment of DATE .

Moreover , PERSON . A. was previously convicted of criminal offences on several occasions ; his most recent conviction was in DATE .

Furthermore , Mr PERSON . A. is a drug addict , and if released , he might engage in further criminal activities related to drugs in order to provide himself with drugs and improve his financial situation . ”

Taking into account the above elements , the danger to society presented by the offences imputed to the applicant , and the need to secure the execution of his sentence , ORG remanded the applicant in custody . The applicant did not appeal against that decision .

On DATE ORG extended the applicant ’s detention until CARDINAL DATE , referring to the gravity of the charges against him . The court further held that the applicant was a drug addict , had a criminal record and if released he might abscond , continue his criminal activities or interfere with the proceedings , and noted that his detention was necessary in order to secure the execution of his sentence . The applicant did not appeal against that decision .

On DATE ORG ( Ufa ) extended the applicant ’s detention until DATE . The court held , in particular , that the period fixed by the court for the applicant ’s detention was not sufficient to allow a judge , who would receive the case for examination on the merits , to take a decision concerning the applicant ’s detention during the trial . The court also held that the applicant was charged with a serious offence presenting a danger to society , and that if released he might continue criminal activities , abscond , or interfere with the proceedings . The court also noted that the applicant ’s detention was necessary in order to secure the execution of the sentence .

On DATE ORG extended the applicant ’s detention until DATE , on the same grounds as given in its decision of CARDINAL DATE .

NORP On DATE the applicant was presented with the final version of the charges . He was accused of several episodes of large - scale drug trafficking committed as a member of an organised criminal group .

On DATE the applicant and his counsel started familiarising themselves with the materials of the criminal case as did the other CARDINAL defendants . According to the Government , the file consisted of CARDINAL volumes .

On DATE ORG ( “ the ORG ” ) extended the applicant ’s detention until DATE , bringing its total duration to DATE and DATE . In taking that decision ORG stated that the applicant was charged with a serious offence , and that if released he might flee from justice , engage in criminal activities or obstruct the establishment of the truth .

On DATE ORG granted the investigation authorities’ request for the applicant ’s detention to be extended until DATE , bringing its total duration to DATE and DATE . The court held as follows :

“ Mr PERSON is charged with particularly serious offences punishable by DATE imprisonment . The grounds on which he was initially remanded in custody ... had not changed . The investigation of the criminal case is particularly complex . These circumstances should be regarded as extraordinary circumstances which can serve as a basis for the extension of the defendant ’s detention . ”

In his appeal against that detention order the applicant requested that the preventive measure be changed to a written undertaking not to leave the town since he was suffering from a serious disease .

On DATE ORG of GPE upheld the detention order of DATE . It found , in particular , that the fact that the applicant was under medical supervision in the remand prison because he had been diagnosed with Human Immunodeficiency Virus ( “ HIV ” ) could not be a ground for his release on a written undertaking .

On CARDINAL DATE ORG , at the investigator ’s request , extended the applicant ’s detention until DATE , thus bringing its total duration to DATE . The court held as follows :

“ ... the grounds on which his [ the applicant ’s ] detention had been based had not changed . These grounds had been sufficient for placing him in detention , since he had been charged with particularly serious offences as a member of an organised criminal group . Therefore , the investigator ’s request is duly reasoned and should be granted . ”

On DATE ORG examined the investigator ’s request , supported by the prosecutor , for extension of the applicant ’s detention beyond the maximum period of DATE . The investigator submitted that owing to the volume and complexity of the criminal case and the large number of co - defendants and their counsel , the applicant and his counsel needed additional time to familiarise themselves with the criminal case . ORG decided , referring to LAW ( “ the CCrP ” , see Relevant domestic law below ) , to extend the applicant ’s detention until DATE , bringing its total duration to DATE . The court held as follows :

“ The term of PERSON detention is to expire on DATE . As required by LAW of the ORG , the investigation was completed and the materials of the criminal case presented to the applicant and his counsel no DATE before the expiration of the maximum period of detention . However , it appears difficult to complete the pre - trial investigation by the above date , since the applicant and his counsel need additional time to comply with the requirements of LAW

The preventive measure applied to PERSON had been duly justified in accordance with LAW CCrP , since he had been charged with a large number of particularly serious offences as a member of an organised criminal group and if released he might interfere with the proceedings or abscond , and therefore the court does not see any reason to alter the preventive measure . ”

NORP In his appeal against that extension order the applicant submitted , among other things , that having regard to his poor health , the absence of any intention to abscond or interfere with the proceedings , and also the fact that he had a permanent place of residence , he should have been released under a written undertaking .

On DATE ORG of GPE examined the applicant ’s appeal . It held , in particular , that the CARDINAL volumes of the criminal case had been presented to the defendants , including the applicant , and their counsel , for their perusal , and that the investigation of that voluminous and complex criminal case had been carried out without any major delays . ORG dismissed the applicant ’s appeal , finding as follows :

“ The large volume of evidence in the criminal case and the need to comply with the requirements of LAW CCrP in respect of all defendants and their counsel confirmed that the court [ ORG of GPE ] had correctly concluded that it was impossible to change the preventive measure applied to PERSON and showed that there existed grounds , provided for in LAW ORG , for further extension of the applicant ’s detention .

The materials of the case do not refer to any new circumstances which came to light after the preventive measure – namely his placement in custody DATE was lawfully imposed on PERSON in accordance with LAW [ of the CCrP ] and which would make it necessary to cancel or change that measure .

The court had every reason to believe , having regard to the lengthy period of the criminal activities concerned and their character , that if released PERSON might interfere with the proceedings or abscond from the investigation and trial .

The age [ of the applicant ] and [ his ] permanent place of residence are not sufficient grounds to cancel or change the measure of restraint .

There is nothing to indicate that PERSON can not be detained in a remand prison due to his state of health .

In those circumstances the court rightly found that there were grounds for extending Mr Pyatkov ’s detention beyond DATE . ”

ORG further extended the applicant ’s detention on DATE until DATE and on DATE until CARDINAL DATE referring to the same grounds as in its decision of DATE . Those detention orders were upheld by ORG of GPE on DATE and CARDINAL DATE respectively .

On DATE ORG extended the applicant ’s detention until DATE , bringing its duration to QUANTITY months and DATE . That decision was based on the same grounds as previous detention orders .

On DATE the applicant appealed against the detention order of CARDINAL DATE . He informed the appeal court that he would submit additional grounds of appeal after he received a copy of the detention order of CARDINAL DATE . According to the applicant , on DATE he submitted additional grounds of appeal in which he requested the appeal court to grant him leave to participate in the appeal hearing . He provided the ORG with a copy of that request . The Government claimed that the applicant had not submitted a special request to take part in the hearing . However , they did not contest the authenticity of a copy of that request provided by the applicant to the ORG .

In his appeal against the detention order of CARDINAL DATE the applicant complained that the extension of his detention had been unlawful and was not based on sufficient grounds . He also complained that he was not provided with an opportunity to familiarise himself with the documents which had served a basis for extension of his detention .

On DATE the applicant and his counsel finished familiarising themselves with the materials of the criminal case .

On DATE the investigator in charge of the case informed the applicant that while the defendants were familiarising themselves with the criminal case , CARDINAL volumes of the case file had been stolen . On DATE criminal proceedings had been initiated in this respect and the lost volumes had been restored . According to the investigator , the applicant could now familiarise himself with those volumes of the case file .

On DATE ORG of GPE examined and dismissed the applicant ’s appeal against the detention order of CARDINAL DATE . Neither the applicant nor his counsel were present at the hearing , whereas the prosecutor was present and requested that the appeal be dismissed .

On DATE ORG extended the applicant ’s detention until DATE , bringing its total duration to DATE and DATE . That detention order referred to LAW ORG and was worded in the same terms as the detention order of DATE .

On DATE the applicant appealed against the detention order of CARDINAL DATE to ORG of GPE . He submitted , in particular , that he had finished familiarising himself with the materials of the criminal case in DATE , including with the copies of the lost volumes . He considered that the extension of his detention was not based on sufficient grounds , since his state of health would not allow him to influence witnesses or abscond . He also requested the appeal court to examine his appeal in his presence or by video link .

According to the Government , on DATE notification of the date and the time of the hearing on the applicant ’s appeal against the decision of CARDINAL DATE was sent to the applicant and his counsel . The Government submitted that the applicant had received that notification on DATE .

On DATE the criminal case against the applicant and his co - defendants was referred to ORG for trial .

On DATE ORG set the preliminary hearing of the case for CARDINAL DATE . However , CARDINAL of the applicant ’s co - defendants ( PERSON and GPE , who were under a written undertaking , did not appear on DATE .

On DATE ORG of GPE examined the applicant ’s appeal against the detention order of CARDINAL DATE . It dismissed the applicant ’s request for leave to appear at the hearing , finding that the criminal case against the applicant and his co - accused had not yet arrived at the court for trial and had not yet been examined , that the applicant had sent his written submissions to the court , and that the prosecutor was not taking part in the examination of his appeal . As to the merits of the applicant ’s appeal , ORG held that the detention order of CARDINAL DATE was lawful and duly reasoned . The applicant ’s counsel was not present at the appeal hearing .

At the preliminary hearing of CARDINAL DATE the trial court held that the crimes of which the absconded co - defendants were accused were closely linked to crimes allegedly committed by other co - defendants , and that it would therefore be impossible to examine the charges against them separately . The court accordingly decided to put the missing co - defendants on the warrant list and suspended criminal proceedings against all defendants until the missing co - defendants were captured . Regarding the other co - defendants , including the applicant , the court held as follows :

“ ... [ the other co - defendants ] are charged with serious and particularly serious offences . The grounds on which they had been placed in detention ... still remained valid . The GPE and their counsel ’s arguments about their permanent place of residence and job , family situation , and serious health problems , can not be regarded as grounds for changing the measure of restraint . In such circumstances , the preventive measure applied to them in the form of detention should not be changed until the preliminary hearing of the case . However , taking into account the requirements of LAW [ of the CCrP ] , they should not stay in detention DATE after the criminal case has come to court ...

... the measure of restraint [ applied to other co - defendants , including the applicant ] should be detention on remand , for a period which should not go beyond DATE ... ”

At the hearing of DATE the applicant was represented by legal counsel .

On DATE the applicant appealed against the decision of DATE to ORG of GPE . He complained that the extension of his detention had been unlawful and excessively severe , since he had been in detention for DATE and his health was deteriorating .

On DATE ORG of GPE upheld the detention order of DATE having found that the applicant ’s detention had been extended in compliance with LAW of the ORG and that it was based on sufficient reasons .

By a decision of CARDINAL DATE the trial court decided to resume the proceedings , and set the preliminary hearing of the case for DATE . By the same decision the trial court held that the measure of restraint applied to the applicant and some of his co - defendants should remain unchanged .

The case was adjourned on DATE and DATE because CARDINAL co - defendants were sick .

NORP On DATE , after holding a preliminary hearing , the trial court set the examination of the case for DATE . By the same decision the trial court severed the proceedings against co - defendant T. , who was still at large , into separate proceedings and extended the applicant ’s and his co - defendants’ detention until DATE . The trial court held as follows :

“ On DATE the criminal case arrived to ORG ...

... They [ the co - defendants , including the applicant ] are charged with serious and particularly serious offences relating to drug trafficking as members of an organised criminal group . At present the grounds on which their detention was ordered , namely the risk that they would interfere with the proceedings , abscond or continue criminal activities , remain unchanged , and they have not provided any guarantees of their appearance in court . In such circumstances , the measure of restraint applied to them should remain unchanged . Since the DATE time - limit running from the date of arrival of the case to the trial court expires on DATE , and in accordance with LAW of the CCrP , the GPE detention should be extended for DATE ... ” .

On DATE the trial court ordered the applicant ’s release under a written undertaking .

On DATE ORG found the applicant guilty of attempted drug trafficking and acquitted him of the remaining charges . The applicant was sentenced to DATE imprisonment . It appears that appeal proceedings are pending .

From DATE and until his release on DATE under a written undertaking the applicant was detained in GPE IZ-CARDINAL/CARDINAL remand prison .

On his admission to the remand prison the applicant was examined by the prison doctor and given a chest fluorography examination , which revealed no signs of tuberculosis .

According to the information provided by the ORG and not disputed by the applicant , DATE the applicant was given CARDINAL more fluorography tests , which revealed no pathology in his lungs .

On DATE a new fluorography test detected changes indicating tuberculosis in the applicant ’s lungs . On DATE the applicant was examined by a doctor who diagnosed him with infiltrative tuberculosis of the right lung . The applicant was placed in the tuberculosis ward of the remand centre and was prescribed anti - tuberculosis treatment .

A fluorography test carried out on DATE detected improvement in the applicant ’s condition .

“ Preventive measures ” or “ measures of restraint ” include an undertaking not to leave a town or region , personal surety , bail and detention ( Article CARDINAL ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( Article CARDINAL ) .

When deciding on a preventive measure , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , reoffend or obstruct the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused ’s character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in detention “ pending investigation ” . Detention “ pending investigation ” must not exceed DATE ( LAW ) .

A judge may extend the detention DATE . Further extensions to DATE may be granted by a judge only in relation to those accused of serious or particularly serious criminal offences , provided that the criminal case is particularly complex and there are grounds justifying detention ( LAW ) .

An extension of detention beyond DATE and DATE may be authorised by a court only in exceptional circumstances in respect of those accused of particularly serious offences , upon an investigator ’s request approved by ORG or his Deputy ( Article CARDINAL § CARDINAL ) .

Extension of detention beyond DATE is prohibited , and the detainee must be immediately released , unless the prosecution ’s request for an extension for the purpose of studying the case has been granted by a court in accordance with LAW of the CCrP ( LAW ) .

Upon completion of the investigation , the detainee must be given access to the case file DATE preceding the expiry of the maximum period of detention indicated in DATE ( Article CARDINAL § CARDINAL ) .

NORP If access was granted at DATE , the detainee must be released after the expiry of the maximum period of detention ( LAW ) .

If access was granted DATE before the expiry of the maximum period of detention but the DATE period proved to be insufficient to read the entire case file , the investigator may request the court to extend the period of detention . The request must be submitted DATE before the expiry of the detention period . If several defendants are involved in the proceedings and the DATE period is insufficient for CARDINAL of them to read the entire case file , the investigator may request the court to extend the period of detention in respect of those defendants who have completed reading the case file , provided that the need to apply a custodial measure to them persists and there are no grounds for choosing another preventive measure ( LAW ) .

Within DATE of receipt of the request for an extension the judge must decide whether to grant it or reject it and release the detainee . If the extension is granted , the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court ( Article CARDINAL § CARDINAL) .

From the date the prosecutor forwards the case to the trial court , the defendant ’s detention is “ before the court ” ( or “ during trial ” ) . The period of detention “ during trial ” is calculated from the date on which the court receives the criminal case and to the date on which the judgment is adopted . Detention “ during trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

An appeal against a judicial decision ordering or extending detention may be lodged with a higher court within DATE . The appeal court must decide on the appeal within DATE of its receipt ( LAW ) .

ORG If a convict wishes to attend an appeal hearing , he should indicate that wish in his statement of appeal ( LAW ) .

Upon receipt of the criminal case and the statement of appeal , the judge fixes the date , time and place for a hearing . The parties shall be notified of the date , time and venue of the hearing DATE before the scheduled hearing . The court shall decide whether the detainee should be summoned to the hearing . A detainee held in custody who expresses a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link . The court shall make a decision with respect to the form of participation of the detainee in the court hearing . If individuals who have been given timely notice of the venue and time of the appeal hearing fail to appear , this shall not preclude examination of the case ( LAW .

By its decision no . CARDINAL of DATE ORG of GPE ( “ the Constitutional Court ” ) declined to examine a complaint by PERSON . , in which he challenged compliance with LAW CARDINAL § CARDINAL of the Code of Criminal Procedure , in so far as it allowed the extension of detention pending investigation beyond the maximum time - limit and indefinitely while the defendant finished reading the material in the case file . ORG held that such an extension was only possible if there still existed “ sufficient grounds to believe ” that the accused might abscond during the investigation or trial , reoffend or otherwise obstruct the establishment of the truth , as provided by LAW . In so far as the challenged provision did not set a specific time - limit for holding the defendant in custody while he studied the case file , ORG considered that it allowed for the possibility of determining such a time - limit for each particular case , depending on its specific features , on condition that the grounds for detention established in LAW had been sufficiently confirmed . The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention . Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order , as well as the right to make an application for the custodial measure to be overturned or altered .

In its ruling no . CARDINAL-O - O of DATE , ORG noted that it had reiterated on several occasions ( rulings nos . CARDINAL-П , CARDINAL-П , PERSON and CARDINAL of DATE , CARDINAL DATE , DATE and CARDINAL DATE respectively ) that a court , when taking a decision under Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the ORG on the placement of an individual in detention or on the extension of a period of an individual ’s detention , was under obligation , inter alia , to calculate and specify a time - limit for such detention .

By its decision no . CARDINAL - O of DATE , ORG declined to examine a complaint by PERSON With reference to its previous decisions of DATE , CARDINAL DATE and DATE , ORG held that even though Article CARDINAL § CARDINAL did not define the maximum period within which an extension could be granted for the purpose of studying the case file , it did not imply the possibility of excessive or unlimited detention because , in granting an extension , the court should not rely solely on a well - founded suspicion that the defendant had committed the offence , but should mainly base its decision on specific circumstances justifying the continued detention , such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending , as well as the importance of the subject matter of the proceedings , the complexity of the case , the conduct of the defendant and other relevant factors .

In its decision no . CARDINAL of CARDINAL DATE “ On the Practice of Application by ORG in ORG in Custody , Bail and ORG Arrest ” the Plenum of ORG of GPE held as follows :

“ CARDINAL . ... Pursuant to LAW ORG [ Code of Criminal Procedure ] , following a request by an investigator the court may extend an accused ’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [ trial ] court , if upon completion of the pre - trial investigation the accused has been given access to the case file DATE before the expiry of the maximum period of detention indicated in LAW CARDINAL and CARDINAL [ CARDINAL , DATE ] . In that case the relevant extension order should indicate the exact period for which the extension is made ...

After a court accepts for examination a criminal case in which the defendant is remanded in custody , it should verify whether the time - limit set by a court order for that detention has expired ... The court decision to maintain the applicant in detention [ taken after arrival of the criminal case to the court for examination on the merits ] should have an indication of DATE of the defendant ’s detention ” .

On DATE the ORG delivered decision no . CARDINAL on a complaint about the refusal to permit a detainee to attend appeal hearings on the issue of detention . It held :

“ LAW regulating the presence of a defendant remanded in custody before the appeal court ... can not be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court , by way of his personal attendance at the hearing or by other lawful means , on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ... ”

DATE . By its decision no . CARDINAL-O of CARDINAL DATE ORG declined to examine a complaint by PERSON With reference to its previous decisions of DATE and DATE , ORG held that convicts , but also others , including suspects in criminal proceedings and those charged with criminal offences and remanded in custody , had to be given the right to bring to the knowledge of the appeal court their position in respect of issues which would be examined by that court either by way of personal participation in the hearing or by other means . This position was later confirmed in its decision no . CARDINAL of DATE .


CASE OF HENDRIN ALI SAID AND ARAS ALI SAID v. HUNGARY

Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)

András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants , brothers , were born in DATE and DATE respectively . When introducing the application , they were staying at FAC , located in GPE .

On DATE the applicants were transferred from the GPE to GPE under the GPE II procedure . They were handed over to ORG ( “ ORG ” ) , the competent alien policing authority , and interviewed with the assistance of a NORP interpreter on DATE .

The applicants related that they had left GPE illegally in DATE , travelled through GPE and GPE and intended to reach the GPE . They had arrived in GPE , also illegally , later in DATE and had immediately been intercepted by the police . They had applied for asylum on DATE . On DATE the asylum procedure had however been terminated because they had absconded . They had travelled illegally , apparently assisted by traffickers , to the GPE , where they had joined their father and applied for asylum . The GPE had started the GPE II procedure and GPE had agreed to their readmission . On DATE they had been transferred to GPE under this scheme .

They alleged that they had been persecuted in GPE because of their father ’s former service in PERSON army and their NORP ethnicity . They also claimed that they had no family members living in GPE .

After the interview , the alien policing authority ordered the applicants’ expulsion to GPE , also imposing a DATE entry ban . According to the decision , the expulsion was necessary because they did not fulfil the requirements of legal residence in GPE . The authority then requested ORG ’s asylum directorate to assess whether the principle of “ non - refoulement ” was applicable . It replied in the negative .

In the expulsion decision it was mentioned that the applicants’ illegal entry and lack of residence permits constituted a threat to public order . Considering their age and family status , their expulsion would have no negative effect , since they had no connection to GPE , did not speak NORP and had no skills and therefore their livelihood was not secured and the chances of finding employment were low . It was also established that they did not have NORP or ORG national family members living in GPE , and although their relatives lived in the GPE , they also had some in GPE , so their social reintegration on return was possible . The applicants were entered into ORG ’s asylum registry , but the ongoing asylum procedure was not referred to when the reasons for expulsion were addressed . ORG concluded that the enforcement of immigration rules had priority over the personal and family interests of the applicants , and that expulsion was a necessary and proportionate measure .

Simultaneously , the execution of the expulsion was suspended by the ORG ’s alien policing authority because the means and conditions necessary for its enforcement were not secured , namely the applicants did not have any travel documents or tickets .

The alien policing authority ordered at the same time the applicants’ alien policing detention for TIME , purportedly in order to secure their expulsion . The detention was based on section CARDINAL(CARDINAL)(b ) of FAC ( see below ) , according to which the immigration authority shall have the power to detain the person in question in order to secure the expulsion if “ he / she has refused to leave the country , or , based on other substantiated reasons , is allegedly delaying or preventing the enforcement of expulsion ” . However , no facts or personal circumstances were presented justifying such a conclusion . The applicants were committed to the LOC alien policing facility .

The asylum authority formally registered the applicants’ asylum claim only on DATE , despite the fact that they had been asylum seekers from their very arrival in GPE , in that they had been transferred under the GPE procedure from the GPE ; they had explicitly mentioned at the interview with the alien policing authorities on DATE that they had left GPE because they had been persecuted and that they had already applied for asylum when they had first entered GPE in DATE .

A preliminary interview was conducted , and on DATE the asylum applications were admitted to the in - merit procedure . Despite this fact , the applicants remained in alien policing detention although asylum seekers were entitled to accommodation in an open refugee reception centre . According to LAW ) of LAW ( see below ) , once the asylum application is admitted to the in - merit procedure , the alien policing authority shall , at the initiative of ORG ’s asylum authority , terminate the asylum seeker ’s detention . However , such an initiative was not taken .

On DATE ORG prolonged the detention until the execution of expulsion was secured or DATE . Although the initial detention had been based ( see above ) on section CARDINAL ) of FAC , the court found that it had been lawfully ordered under LAW ( see below ) and that its prolongation was necessary . It held that sections DATE , CARDINAL ) and PERSON ) of that LAW were applicable in the case . In the reasoning , reference was made to the fact that the applicants had arrived in GPE illegally and applied for asylum in DATE then again in DATE , as well as to the contents of the expulsion order . No particulars relating to the ongoing asylum procedure were mentioned .

The detention was prolonged on DATE , DATE , CARDINAL DATE and finally on DATE , until DATE . On each occasion , ORG limited the reasoning to stating that the initial reasons for the detention given in the first court decision were still in place .

On an unspecified date , the applicants were transferred to ORG , an open facility .

“ ( CARDINAL ) Any third country national whose application for refugee status is pending may be turned back or expelled only if his or her application has been refused by a final and enforceable decision of the refugee authority . ”

“ ( CARDINAL ) In order to secure the expulsion of a third - country national , the immigration authority is entitled to detain a person if : ...

b ) he / she has refused to leave the country , or , based on other substantiated reasons , is allegedly delaying or preventing the enforcement of expulsion ; ...

( CARDINAL ) Detention under the immigration laws may be ordered for a maximum duration of DATE and extended by the court of jurisdiction by reference to the place of detention until the third - country national ’s departure , or for a maximum of DATE .

( CARDINAL ) Detention ordered under the immigration laws shall be terminated immediately :

a ) if the conditions for carrying out expulsion are secured ;

b ) if it becomes evident that expulsion can not be executed ; or

c ) after DATE from the date when the detention was ordered . ”

“ ( CARDINAL ) The immigration authority may order the detention of a third - country national prior to expulsion in order to secure the conclusion of the immigration proceedings pending , if his / her identity or the legal grounds of his / her residence has not been conclusively established . ”

“ ( CARDINAL ) Where LAW can not be applied , the decision to determine as to whether an application is considered inadmissible lies with the refugee authority .

( CARDINAL ) An application shall be considered inadmissible if :

a ) the applicant is a national of any Member State of ORG ;

b ) the applicant was granted refugee status in another Member ORG ;

c ) the applicant was granted refugee status in a third country , where this protection also applies at the time of examination of the application , and the country in question is liable to re - admit the applicant ;

d ) the applicant has lodged an identical application after a final refusal . ”

“ ( CARDINAL ) If the refugee authority finds an application admissible , it shall proceed to the substantive examination of the application ...

( CARDINAL ) If the refugee authority proceeds to the substantive examination of the application and the applicant is detained by order of the immigration authority , the immigration authority shall release the applicant at the initiative of the refugee authority . ”

“ ( CARDINAL ) In the order admitting the request to the in - merit phase , the refugee authority shall assign the asylum seeker – upon the latter ’s request – to a private accommodation or , in the absence of such , to a dedicated facility or another accommodation , unless the asylum seeker is subjected to a ... measure restraining personal liberty . ...

( CARDINAL ) During the in - merit examination and the eventual judicial review of the decision adopted therein , the asylum seeker is obliged to stay at the designated accommodation .

( CARDINAL ) The in - merit procedure shall be completed within DATE from the adoption of the decision ordering it . ”

“ If the foreign national expresses his / her intention to file an application for recognition as a refugee during the alien policing procedure ... his / her statement shall be recorded by the proceeding authority , which shall then inform without delay the refugee authority and the reception centre responsible for accommodating those being in the preliminary asylum procedure , forwarding TIME and the fingerprint recording sheet at the same time . ”


Remainder inadmissible;Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

On DATE the applicant 's mother requested ORG . CARDINAL ( NORP диспансер N CARDINAL ) ( the “ ORG ” ) to examine her son , expressing concern about a change in his behaviour . He was afraid to leave the flat where he lived , had cut out all social contacts and was frightened by noises or the sound of the telephone ringing .

The applicant refused to be examined by the doctors at the ORG and on CARDINAL DATE Dr ORG , a psychiatrist from the ORG , applied for a court order authorising the applicant 's psychiatric assessment without his consent . She noted , on the basis of the information submitted by the applicant 's mother , that the applicant might be suffering from a severe mental disorder that impaired his ability to meet the ordinary demands of life , and that his condition might deteriorate should he be left without psychiatric treatment .

On DATE the ORG of GPE authorised the psychiatric assessment . According to the applicant , he was informed of that decision at DATE .

On DATE Dr N. examined the applicant at his home . The applicant 's mother was present . The applicant was agitated , he shouted at the doctor and his mother and threatened them . He refused to talk and made them both leave . Dr N. concluded that the applicant suffered from paranoid schizophrenia and that his condition warranted committal to a psychiatric hospital for further assessment and treatment . At TIME the applicant was admitted to ORG . CARDINAL ( GPE клиническая больница N CARDINAL ) ( the “ Hospital ” ) . According to the applicant , he was first taken to a police station and then to the hospital .

On DATE the applicant consented to treatment in the ORG until DATE .

NORP On DATE the applicant refused to stay in hospital any longer . At TIME he was examined by CARDINAL psychiatrists who provisionally diagnosed him as suffering from depressive syndrome and schizophrenia . They noted that the applicant was solitary and antisocial ; he was unaware of his condition and expressed delusional ideas about his mother trying to manipulate him . They concluded that his mental disorder was serious enough to require inpatient treatment .

On DATE ORG administration applied to the court seeking an extension of the applicant 's stay there . According to the medical report submitted , the applicant was suffering from a severe mental disorder and might cause serious harm to himself or others . On DATE the Nagatinskiy ORG of GPE provisionally authorised the applicant 's further hospitalisation pending consideration of the case . The court stated no reasons in its decision .

On DATE the Nagatinskiy ORG of GPE authorised the extension of the applicant 's stay in the ORG . The hearing was held on the GPE 's LOC . The applicant attended the hearing but was not represented . In particular , the court noted :

“ After having heard [ the applicant ] , the hospital 's representative ... , and the prosecutor who considered that the [ hospital 's ] request should be granted , and after having studied the materials [ in its possession ] , the court considers that the [ hospital 's ] request to commit the applicant to the [ hospital ] against his will is well - substantiated and should be granted . ”

On DATE the applicant consented in writing to further treatment in hospital .

Once the applicant 's condition improved , he was discharged from hospital on DATE .

On DATE the applicant lodged an appeal against the decision of DATE . He submitted , in particular , that the court had failed to verify the lawfulness of his committal to hospital

On DATE ORG upheld the decision of DATE . Both the applicant and his lawyer attended the hearing . The court noted that the applicant 's hospitalisation had been in accordance with the applicable laws . The court further indicated that the applicant 's committal to hospital against his will had been necessary in view of his severe psychiatric disorder which made him dangerous to himself and others . Lastly , the court observed that it had been open to the applicant to ask for legal representation before the court at first level of jurisdiction . However , he had failed to do so and the decision of DATE should not be quashed on that ground .

A person may be subject to an involuntary psychiatric assessment if his or her behaviour gives reasonable grounds to believe that he or she may be suffering from a serious mental disorder and , because of the mental disorder , he or she ( a ) is likely to cause serious harm to himself or herself or another person or ( b ) does not have the capacity to take basic care of himself or herself or ( c ) is likely to suffer serious physical impairment or mental deterioration in the absence of psychiatric treatment ( Article CARDINAL of the Act ) .

In the event of ( b ) or ( c ) above , a psychiatrist may decide to conduct psychiatric assessment without the person 's consent , subject to prior judicial approval ( Article CARDINAL of the Act ) .

In the event of ( a ) , ( b ) , or ( c ) above , a person may be admitted to a hospital against his or her will if he or she is suffering from a severe mental disorder and requires psychiatric examination and treatment in a psychiatric hospital ( Article CARDINAL of the Act ) .

A person admitted against his or her will should be assessed within TIME by a psychiatric panel . Should the panel decide to keep the person in hospital , they should file a request to that effect with the judge within TIME , together with a supporting medical report ( Article QUANTITY ) .

The judge must then consider the request within DATE ( Article CARDINAL § QUANTITY ) . He or she must also authorise the person 's continued hospitalisation pending the consideration of the matter by the court ( Article CARDINAL § CARDINAL of the Act ) .

The old ORG did not set forth special rules governing committal to a psychiatric hospital .

A period of time expressed as a number of DATE shall expire on the relevant day and month of DATE of that period . A period of time expressed as DATE shall expire on DATE . If DATE of the period of time falls on a non - working day , the next closest working day shall be considered as DATE of that period ( LAW ORG and LAW DATE as amended ) .


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Matti Pellonpää;Nicolas Bratza;Scott Baker

The applicants , PERSON ( the first applicant ) and PERSON ( the second applicant ) PERSON , are GPE nationals . The first applicant , born in DATE , is a severely mentally and physically disabled child who requires TIME attention . The second applicant is his mother .

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

The first applicant had been particularly unwell since DATE when he was admitted to PERSON Hospital , CARDINAL of CARDINAL hospitals belonging to ORG NHS ) Trust ( “ the Trust ” ) . He was operated on in order to alleviate an upper respiratory tract obstruction . The first applicant suffered post - operative complications , including infections , and had to be put on a ventilator since he had become critically ill .

During the period of the first applicant 's treatment , discussions took place at the hospital between the second applicant and intensive - care staff and paediatricians . Among the views expressed was that , despite the best care , the first applicant was dying and that further intensive care would be inappropriate . The second applicant and other family members were not happy with this opinion , although a note drawn up on DATE by Dr PERSON mentioned that the family had appeared to accept the situation “ without distress or significant surprise ” . However , on DATE , following an “ unconstructive and confrontational ” meeting with family members , the hospital offered to arrange for an outside opinion on PERSON 's condition and the suitability of further active intensive - care therapy . This offer was made twice and on both occasions was refused . The Trust consulted its solicitors and advised the applicants to consult their solicitors .

NORP However , the first applicant 's condition improved and on DATE he was able to be returned from intensive care to the paediatric ward . The applicants draw attention to the fact that the first applicant 's notes on being discharged from intensive care made reference to a “ demanding family ” . They also observe that a note of Dr PERSON drawn up on DATE stated :

“ I think [ the first applicant ] would not survive this illness despite our efforts , but our efforts continue and we will continue his antibiotics , physio ' and attempt to find feeds that he will tolerate ... We may need to consider measures to relieve distress e.g. hyoscine for the secretions , morphine and the risk of those measures and mum felt that this was not appropriate at present . ”

The first applicant was eventually able to return home on DATE . However , he had to be readmitted to the hospital on several occasions thereafter on account of respiratory tract infections .

On CARDINAL such occasion , on DATE , the doctors discussed with the second applicant the use of morphine to alleviate distress . The second applicant expressed her opposition to the use of morphine or other drugs to relieve distress . She told the doctors that in the event that the first applicant 's heart stopped she would expect resuscitation , including intubation . PERSON considered that this would not be in the first applicant 's best interests , and stated that if death were inevitable all that was on offer was “ morphine and TLC [ tender loving care ] ” . PERSON case notes recorded that :

“ These replies [ of the second applicant ] are contrary to decisions particularly previously made and I do not believe that further intensive care is in [ the first applicant 's ] best interest . This needs to be resolved before it becomes necessary and I have therefore said that we need a second opinion – if necessary appointed by the courts to ensure an impartial decision by which we would all comply . ”

That DATE the applicants ' general practitioner informed the hospital that he had been contacted by the applicants ' solicitor about the family 's concern that the first applicant would be “ helped on his way ” with morphine .

Dr Walker reported as follows on a discussion which she had with the second applicant on DATE :

“ If [ the first applicant ] deteriorates rapidly he should receive bag and mask positive pressure respiration , but no cardiac massage and no intravenous or other drugs to resuscitate him . ”

As to the use of morphine , PERSON stressed at the meeting that the doctors would never prescribe it or other sedatives without first discussing this with the second applicant . PERSON stated in her notes :

“ I have told [ the second applicant ] that we can give morphine to alleviate distress even vs. their wishes ( and we can – I am assured by ORG that no judge has ever overturned a doctor 's decision to withdraw treatment / alleviate symptoms ) but we would n't without telling them . ”

According to the Government , the agreement as regards non - resuscitation was confirmed with the second applicant on DATE by PERSON . PERSON contemporaneous notes on the matter state :

“ The position appears to me to be precarious . He may recover with the antibiotics but the inability to cough secretions makes it possible that he will deteriorate and die . I have discussed the latter scenario . Mother says that she would like bag and mask but understands that it would not be appropriate to go on to full intubation and ORG treatment . This is as discussed with PERSON . ”

PERSON and the second applicant also discussed on that occasion the use of morphine in therapeutic doses . The applicants point out that Dr ORG recognised that :

“ In the event of total disagreement we should be obliged to go to the courts to provide support for decision . Mother says she does not understand this . ”

PERSON notes record the following :

“ Mother said that she would not contemplate euthanasia and I said that we would not either . The question of morphine came up and she agrees with the use of morphine in therapeutic doses to overcome pain if necessary .

... in view of DATE 's and DATE 's discussions with mother which appear to have achieved a common ground , involvement of the court may not be necessary . ”

The first applicant 's condition deteriorated . He was admitted to PERSON Hospital on DATE , and then again on DATE following respiratory failure .

The first applicant was treated over the course of DATE . His condition was reviewed on separate occasions by CARDINAL doctors , both of whom expressed serious concern about his prospects of surviving . Dr PERSON observed that the first applicant looked “ ghastly ” and “ exhausted ” .

At TIME on DATE , the medical opinion was that the first applicant “ was going into the terminal phase of respiratory failure ” .

At TIME on DATE , PERSON noted that the first applicant was “ dying from his lung disease ” .

The doctors treating the first applicant advised that diamorphine should be administered to him , believing that he had entered a terminal phase and required pain relief . The second applicant and other members of the family did not agree with the doctors ' view that her son was dying and were very concerned that the administration of diamorphine ( previously morphine had been mentioned ) would compromise his chances of recovery . The second applicant voiced her concerns at a meeting with PERSON and ORG and ORG of ORG . A woman police officer was also present . The hospital persisted in its wish to give the first applicant diamorphine , while the second applicant was given an assurance that he would only be given “ the smallest possible dose ” . According to the applicants , the Chief Executive of ORG had an influential role at the meeting and made it clear to the second applicant that diamorphine would be given to the first applicant . They refer in this connection to a letter written by ORG to the applicants ' MP on DATE , in which he stated that he had instructed the doctors to administer diamorphine to the first applicant at the minimum dosage over DATE period . The Government assert that the Chief Executive had no role to play whatsoever in the exercise of clinical judgment in the first applicant 's case .

The notes of PERSON , PERSON and ORG all stressed that the administration of morphine was not intended to kill the first applicant but to relieve his distress . PERSON observed in his notes that the doctors who had met with the second applicant had stressed that the “ use of morphine is NOT euthanasia – it is to relieve [ the first applicant 's ] distress ... ” .

The second applicant subsequently expressed the wish to take the first applicant home if the doctors were correct in their view that he was dying . A police officer in attendance advised her that if she attempted to remove him , she would be arrested . The hospital also indicated that unless the family members present allowed the doctors to commence diamorphine the police would remove them also . The second applicant tried without success to contact her solicitor , including at the latter 's home .

A diamorphine infusion was commenced at TIME on DATE . The applicants maintain that the dose administered , namely QUANTITY , was in reality an adult dose and excessive for a child of the first applicant 's age . The Government deny this and point to the first applicant 's weight and to the fact that previous treatment with opiates had rendered the first applicant more tolerant to them .

A dispute broke out in the hospital involving the family members ( but not the second applicant ) and the doctors . The family members believed that the first applicant was being covertly euthanased and attempted to prevent the doctors from entering the first applicant 's room . The hospital authorities called the security staff and threatened to remove the family from the hospital by force .

A do - not - resuscitate order ( DNR ) was put in the first applicant 's medical notes without consulting the second applicant .

The dosage was reduced by CARDINAL at TIME on DATE in response to the family 's continuing objections . The Government draw attention to the views of the doctors that the dose administered to the first applicant had improved his condition . PERSON found that it was :

“ a real relief and pleasant to see [ the first applicant ] peaceful and settled ... and his overall condition including agitation and distress had markedly improved ” .

The following day the second applicant found that her son 's condition had deteriorated alarmingly and was worried that this was due to the effect which the diamorphine was having on him . The family became extremely agitated and demanded that diamorphine be stopped . PERSON stated that this was only possible if the family agreed not to resuscitate or stimulate the first applicant . The Government contend that PERSON objective was to prevent the family from disturbing the first applicant by creating undue noise and touching him , since at that time he was peaceful , breathing deeply and was not in distress .

The family tried to revive the first applicant and a fight broke out between certain members of the family and PERSON and PERSON .

The second applicant successfully resuscitated her son while the fight was going on . At some stage the police were summoned to the hospital in response to the assaults on FAC and PERSON . Several police officers were injured and the mother of another patient on the ward was pushed against a wall . All but CARDINAL of the children on the ward had to be evacuated . The injuries sustained by ORG and PERSON were such that they were unable to perform their normal duties for a time .

The first applicant 's condition improved and he was able to respond to stimuli from his relatives . He was able to be discharged on DATE .

The second applicant states that the ORG made no arrangements for any alternative care on discharge for the first applicant . They mention that the Trust did not arrange for him to be given an antidote for diamorphine and that the second applicant had to acquire equipment for measuring his oxygen saturation . In this connection , the Government draw attention to a report by PERSON , which states :

“ It was felt that further care within the hospital setting was impossible and that he would be better managed at home , provided that we could obtain oxygen for the home . Arrangements were made to obtain oxygen and I discussed with his general practitioner to take on the responsibility of caring for his major chest problems at home . I then telephoned the Clinical Director at ORG to enquire whether they would accept him if he had to be readmitted in view of the severe disturbances to the hospital staff . I discussed going home with his mother who agreed to this and we then made telephone calls to community nurses and made arrangements for home oxygen . Following this transport was arranged to take the patient home . ”

On DATE some of the family members involved in the fracas with the doctors were convicted of assault and ordered to be excluded from the hospital . On DATE their sentences were reduced on appeal . On DATE the Trust had dropped its civil action for trespass against the second applicant for want of a legal basis .

On DATE the Medical Director of the Trust notified the second applicant in a letter that the paediatric staff at the hospital were anxious about a repetition of the problems which arose when her son was last admitted and were no longer confident of being able to give him the treatment he required . The letter continued :

“ Unfortunately [ ORG ] believe that all we could offer [ the first applicant ] would be to make his remaining life as comfortable as possible and take no active steps to prolong life . This obviously means withholding or giving treatment with which you may not agree . As there seems no easy way to resolve these differences it would be sensible , if [ the first applicant ] required further inpatient care , for this to be provided at another hospital . ”

The second applicant was informed that ORG , QUANTITY from her home , was willing to admit and treat her son should he suffer a further attack .

The family 's general practitioner subsequently contacted ORG with a view to discussing arrangements for the first applicant 's admission in the event of a future emergency .

The second applicant applied for judicial review of the decisions made by the Trust with regard to the medical treatment of her son . The matter came before Mr Justice PERSON .

On DATE Mr Justice PERSON ruled that the ORG 's decision was not susceptible to review because the situation had passed and would not arise again at the hospitals managed by it or , it was to be hoped , at any other hospital . He added :

“ If there is serious disagreement , the best interests procedure can be involved at short notice and the court will resolve it on the basis of the facts as they are then . They will almost inevitably be different from the facts as they were in DATE . ... In any event it is unclear precisely what the facts were in DATE on the evidence that is before this court . ... Furthermore , if there is a crisis in the future , I am confident that if the matter is brought before the court ORG will again provide assistance . ”

In Mr Justice PERSON view , judicial review was too blunt an instrument for the sensitive and on - going problems of the type raised by the case . In particular , he considered that it would be very difficult to frame any declaration in meaningful terms in a hypothetical situation so as not to restrict unnecessarily proper treatment by the doctors in an on - going and developing matter . He stressed in conclusion :

“ Nothing , I would finally say , should be read into this judgment to infer that it is my view that [ ORG ] in this case acted either lawfully or unlawfully . ”

The second applicant applied for permission to appeal to ORG . The application was refused on DATE . Giving judgment , Lord PERSON , Master of the Rolls , was of the view that the considerations which might arise in relation to the first applicant and other children who suffered from similar disabilities were almost infinite and for the courts to try and produce clarity would be a task fraught with danger . He stated :

“ There are questions of judgment involved . There can be no doubt that the best course is for a parent of a child to agree on the course which the doctors are proposing to take , having fully consulted the parent and for the parent to fully understand what is involved . That is the course which should always be adopted in a case of this nature . If that is not possible and there is a conflict , and if the conflict is of a grave nature , the matter must then be brought before the court so the court can decide what is in the best interests of the child concerned . Faced with a particular problem , the courts will answer that problem . ...

... The difficulty in this area is that there are conflicting principles involved . The principles of law are clearly established , but how you apply those principles to particular facts is often very difficult to anticipate . It is only when the court is faced with that task that it gives an answer which reflects the view of the court as to what is in the best interests of the child . In doing so it takes into account the natural concerns and the responsibilities of the parent . It also takes into account the views of the doctors , and considers what is the most desirable answer taking the best advice it can obtain from , among others , the Official Solicitor . That is the way , in my judgment , that the courts must react in this very sensitive and difficult area . ”

Lord PERSON disagreed with Mr Justice PERSON view that the applicants had used the wrong legal procedure . In his opinion , “ particularly in cases regarding children , the last thing the court should be concerned about is whether the right procedure has been used in the particular case ” .

The second applicant complained to ORG about the conduct of the doctors involved in her son 's care , in particular that they had assaulted him by administering heroin to him against her wishes and without a court authorisation .

On DATE ORG concluded that its investigation revealed that the doctors involved had not been guilty of serious professional misconduct or seriously deficient performance and that the treatment complained of had been justified in the light of the emergency situation which confronted the doctors at the material time . According to ORG , the test for bringing disciplinary proceedings against the doctors was not satisfied on the evidence . It had asked itself in this connection whether the doctors put themselves in a reasonable position from which to arrive at the decision they did and whether the decision reached was so “ outrageous ” that no reasonably competent doctor could have reached it .

The second applicant also complained to the GPE police about the conduct of the doctors who had treated her son . An investigation was opened . The doctors were interviewed and a report sent to ORG .

On DATE the second applicant 's solicitors informed her that ORG had decided not to bring charges against the doctors involved for lack of evidence . In a letter dated DATE to her solicitors , ORG indicated the reasons which led to this finding as well as the various materials relied on in reaching its conclusion on the advisability of bringing charges against the doctors in relation to the offences of attempted murder and conspiracy to murder and offences under the ORG against LAW .

Paragraph CARDINAL of ORG guidance “ Seeking patients ' consent : the ethical considerations ” provides :

“ Where a child under DATE is not competent to give or withhold the informed consent , a person with parental responsibility may authorise investigations or treatment which are in the child 's best interests . This person may also refuse any intervention where they consider that refusal to be in the child 's best interest , but you are not bound by such a refusal and may seek a ruling from the court . In an emergency , where you consider that it is in the child 's best interest to proceed , you may treat the child , provided it is limited to that treatment which is reasonably required in an emergency . ”

In Re J. ( A ORG ) ( PERSON : Medical Treatment ) ( [ DATE ] CARDINAL ORG ) , PERSON , Master of the Rolls , stated :

“ The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion ... This duty is however subject to the qualification that , if time permits , they must obtain the consent of the parents before undertaking serious invasive treatment .

The parents owe the child a duty to give or withhold consent in the best interests of the child and without regard to their own interests .

The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents , although this is not to say that the parents will be excluded from the decision - making process . Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone .

No - one can dictate the treatment to be given to the child – neither court , parents nor doctors . There are checks and balances . The doctors can recommend treatment A in preference to treatment PERSON They can also refuse to adopt treatment C on the grounds that it is medically contra - indicated or for some other reason is a treatment which they could not conscientiously administer . The court or parents for their part can refuse to consent to treatment A or B or both , but can not insist on treatment C. The inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents .

In A ORG v. NORP ( [ DATE ] ORG Reports CARDINAL ) , it was held :

“ The court 's clear respect for the sanctity of human life must impose a strong obligation in favour of taking all steps capable of preserving life , save in exceptional circumstances . ”

In that case , the court accepted the views of doctors treating a child that resuscitation of the child in the event of respiratory or cardiac arrest would be inappropriate .

According to the Government , LANGUAGE law recognises that it may be in the best interests of a child or of an adult to be treated with medication which relieves his symptoms but has the side - effect of hastening death .

According to Part CARDINAL of ORG guidance “ Withholding and withdrawing medical treatment : guidance for decision making ” :

“ ... where there is reasonable uncertainty about the benefit of life - prolonging treatment , there should be a presumption in favour of initiating it , although there are circumstances in which active intervention ( other than basic care ) would not be appropriate since best interests is not synonymous with prolongation of life ... If the child 's condition is incompatible with survival or where there is broad consensus that the condition is so severe that treatment would not provide a benefit in terms of being able to restore or maintain the patient 's health , intervention may be unjustified . Similarly , where treatments would involve suffering or distress to the child , these and other burdens must be weighed against the anticipated benefit , even if life can not be prolonged without treatment . ”

Paragraph CARDINAL.CARDINAL of the DATE ORG guidance “ Withholding and withdrawing life - prolonging medical treatment ” states :

“ Those with parental responsibility for a baby or young child are legally and morally entitled to give or withhold consent to treatment . Their decisions will usually be determinative unless they conflict seriously with the interpretation of those providing care about the child 's best interests . ”

Paragraph CARDINAL states :

“ The law has confirmed that best interests and the balance of benefits and burdens are essential components of decision making and that the views of parents are a part of this . However , parents can not necessarily insist on enforcing decisions based solely on their own preferences where these conflict with good medical evidence . ”

At the time of the facts giving rise to the instant application , guidance had been published by ORG indicating the procedures that should normally be followed in the event of a parent dissenting from the opinion of the health - care team that treatment should be withheld from a child . The guidance states that a second opinion should normally be offered and the parent should be allowed time to consult advisers of their choice . Paragraph CARDINAL states :

“ In most cases , with proper explanation and adequate time , parents can accept medical advice , but if the parents do not consent to withdrawal or withhold consent , a second opinion should be obtained and then the courts should be consulted . ORG can be telephoned for advice which will help clarify the need for court involvement . ”

Guidance published by ORG in DATE , entitled “ Consent : working with children ” , deals explicitly with the situation where clinicians believe that treatment which the parents want is not appropriate . It states :

“ CARDINAL example would be where a child is very seriously ill , and clinicians believe that the suffering involved in further treatment would outweigh the possible benefits . Parents can not require you to provide a particular treatment if you do not believe that it is clinically appropriate , but again the courts can be asked to rule if agreement can not be reached . While a court would not require you to provide treatment against your clinical judgment , it could require you to transfer responsibility for the child 's care to another clinician who does believe that the proposed treatment is appropriate . ”

In Re A. ( ORG ) , Lord Justice PERSON stated :

“ Since the parents are empowered at law , it seems to be that their decision must be respected and in my judgment the hospital would be no more entitled to disregard their refusal than they are to disregard an adult person 's refusal . I derive this from Re ( A Minor ) ( PERSON : Consent to Treatment ) [ DATE ] Fam . CARDINAL , DATE , where Lord PERSON of PERSON , Master of the Rolls , said :

' It is trite law that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent . If he does so , he will be liable in damages for trespass to the person and may be guilty of a criminal assault ' ”

Under LANGUAGE law , there may be circumstances in which it is not practicable to seek a declaration from the courts , for example in an emergency situation where speedy decisions have to be taken concerning appropriate treatment . In GPE ( A Minor ) ( [ DATE ] ORG : Medical CARDINAL ) , Sir PERSON affirmed that the decision of a doctor whether to treat a child

“ is dependent upon an exercise of his own professional judgment , subject only to the threshold requirement that save in exceptional cases usually of an emergency he has the consent of someone who has authority to give that consent ” .

This is reflected in paragraph CARDINAL of the Reference guide to consent for examination or treatment , which states :

“ In an emergency it is justifiable to treat a child who lacks capacity without the consent of a person with parental authority , if it is impossible to obtain consent in time and if the treatment is vital to the survival or health of the child . ”

In Re T ( Adult : Refusal of Treatment ) ( [ DATE ] CARDINAL Weekly Law Reports Fam . CARDINAL ) , Lord PERSON stated :

“ If in a potentially life - threatening situation or CARDINAL in which irreparable damage to the patient 's health is to be anticipated , doctors or health authorities are faced with a refusal by an adult patient to accept essential treatment and they have real doubts as to the validity of that refusal , they should in the public interest , not to mention that of the patient , at once seek a declaration from the courts as to whether the proposed treatment would or would not be lawful . This step should not be left to the patient 's family , who will probably not know of the facility and may be inhibited by questions of expense . Such cases will be rare , but when they do arise ... the courts can and will provide immediate assistance . ”

ORG aide - mémoire on consent provides :

“ CARDINAL . Giving and obtaining consent is usually a process , not a CARDINAL - off event . Patients can change their minds and withdraw consent at any time . If there is any doubt , you should always check that the patient still consents to your caring for or treating them .

Can children consent for themselves ?

NORP Before examining , treating or caring for a child , you must also seek consent . Young people aged DATE are presumed to have the competence to give consent for themselves . Younger children who understand fully what is involved in the proposed procedure can also give consent ( although their parents will ideally be involved ) . In other cases , someone with parental responsibility must give consent on the child 's behalf , unless they can not be reached in an emergency . ...

What information should be provided ?

Parents need sufficient information before they can decide whether to give their consent : for example information about the benefits and risks of the proposed treatment , and alternative treatments . If the patient is not offered as much information as they reasonably need to make their decision , and in a form they can understand , their consent may not be valid . ”

Guidelines published in DATE by ORG and ORG in conjunction with ORG provide in paragraph CARDINAL :

“ It is appropriate to consider a do - not - resuscitate order ( DNR ) in the following circumstances :

a. Where the patient 's condition indicates that effective Cardiopulmonary Resuscitation ( CPR ) is unlikely to be successful .

b. Where PERSON is not in accord with the recorded , sustained wishes of the patient who is mentally competent .

c. Where successful ORG is likely to be followed by a length and quality of life which would not be acceptable to the patient . ”

Paragraph CARDINAL states :

“ The overall responsibility for a DNR decision rests with the consultant in charge of the patient 's care . This should be made after appropriate consultation and consideration of all aspects of the patient 's condition . The perspectives of other members of the medical and nursing team , the patient and with due regard to patient confidentiality , the patient 's relatives or close friends , may all be valuable in forming the consultant 's decision . ”

Paragraph CARDINAL provides :

“ Discussions of the advisability or otherwise of ORG will be highly sensitive and complex and should be undertaken by senior and experienced members of the medical team supported by senior nursing colleagues . A DNR order applies solely to ORG . It should be made clear that all other treatment and care which are appropriate for the patient are not precluded and should not be influenced by a DNR order . ”

Current departmental guidance is set out in “ Resuscitation policy ” ( HSC Circular CARDINAL/CARDINAL ) . It states :

“ Resuscitation decisions are amongst the most sensitive decisions that clinicians , patients and parents may have to make . Patients ( and where appropriate their relatives and carers ) have as much right to be involved in those decisions as they do in other decisions about their care and treatment . As with all decision making , doctors have a duty to act in accordance with an appropriate and responsible body of professional opinion . ”


Violation of Art. 6-1;Violation of Art. 13;Violation of P4-2

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

On DATE the applicant broke into the apartment of PERSON and took a bicycle which had belonged to her ex - husband , who had died DATE .

On receiving a complaint from PERSON , on DATE ORG ( “ the SDPO ” ) instituted criminal proceedings against the applicant for burglary and theft .

NORP In DATE the investigation was suspended several times because of the applicant ’s illness .

On DATE the applicant was charged with burglary and theft . The same day she was placed under an obligation not to abscond .

In DATE , DATE , DATE and DATE the investigation was suspended several times because of the applicant ’s illness .

In DATE the investigation was completed and the criminal case against the applicant was referred to ORG , GPE ( “ the ORG ” ) .

On DATE ORG remitted the case for additional investigation .

On DATE the ORG reclassified the applicant ’s actions and charged her with burglary and robbery .

On DATE the ORG completed the additional investigation and referred the case to the court .

On DATE ORG convicted the applicant , but on DATE ORG quashed the judgment and remitted the case for fresh investigation .

On DATE the ORG reclassified the applicant ’s actions from robbery to forcible assertion of right .

On DATE the applicant was charged with robbery .

On DATE the charges against the applicant were changed back to forcible assertion of right . The SDPO terminated the criminal case against the applicant because further prosecution was time - barred .

On DATE ORG ( “ the LRPO ” ) quashed the decision of CARDINAL DATE and took over the investigation into the case .

On DATE the investigation was completed and on CARDINAL DATE the criminal case was transferred to the court .

On DATE the court remitted the case for further investigation .

On DATE the investigator changed the charges against the applicant to concealment of a crime .

In DATE the investigation was completed and the case was referred to the court .

On DATE ORG upheld the decision of DATE .

NORP In DATE the charges against the applicant were changed to forcible assertion of right . The investigation was completed and the case was referred to the court .

In DATE the court held QUANTITY hearings .

On DATE , DATE and DATE the hearings were adjourned because of the applicant ’s absence .

In DATE PERSON , the aggrieved party , died .

On DATE ORG closed the criminal case against the applicant as time - barred for further prosecution . On DATE ORG quashed this decision and remitted the case for fresh consideration .

DATE court hearings were postponed CARDINAL times due to the applicant ’s failure to appear .

On DATE the investigation was completed and the case was referred to the court .

On DATE the case was remitted for further investigation .

On DATE , DATE and CARDINAL DATE the court remitted the case for further investigation .

On DATE the investigator cancelled the applicant ’s obligation not to abscond . During the period when the applicant had been under the obligation not to abscond she had been allowed several times to go abroad to visit her relatives and on several occasions she had done so without permission . On CARDINAL occasion , the applicant had not been permitted to leave her place of residence .

On DATE the prosecutor terminated the criminal proceedings against the applicant for lack of proof of crime .

CARDINAL text of ORG CARDINAL , CARDINAL of the Code of Criminal Procedure of DATE , which are the general rules on preventive measures , is set out in Merit v. GPE ( no . MONEY , judgment of DATE ) .

According to LAW , an undertaking not to abscond consists of an obligation by a suspect or an accused not to leave his or her place of residence or temporary address without the permission of an investigator . In the event of a breach of such a written undertaking , a stricter measure of restraint may be applied .