FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39474/98 by D.G. against Ireland

The European Court of Human Rights (Fourth Section) , sitting on 9 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , judges , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 14 January 1998 and registered on 21 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Irish national, born on 9 July 1980 and he is currently detained on remand in St. Patrick’s Institution. He is represented before the Court by Mr John Quinn, a lawyer practising in Dublin.

A. Particular circumstances of the case

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

The applicant was in the care of the Eastern Health Board (“the Board”) from when he was two years of age until the age of majority (18 years). From 1984 to 1986 he was placed in children’s homes and thereafter with a foster family. In 1991 the foster placement broke down and the subsequent placement with a “carer” family also broke down due to the applicant’s behaviour. Between 1993 and May 1996 he was detained at Oberstown Boys’ Centre on foot of assault charges. Subsequent placements failed again due to the applicant’s behaviour and in August 1996 the Board placed him in a private and specialised residential unit in the United Kingdom, which placement also failed.

In November 1996 the applicant was convicted in the United Kingdom of criminal damage, burglary, arson and aggravated theft and sentenced to nine months in prison. In February 1997, and at the request of the Board, the Irish High Court granted a warrant (pursuant to the Transfer of Sentenced Persons Act 1995) allowing the applicant to serve the balance of his nine-month sentence in St. Patrick’s Institution in Ireland. The applicant was released on 7 March 1997. He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys’ hostel run on a voluntary basis by a priest. From then, until the issuance of the judicial review proceedings described below, the applicant’s solicitor wrote to the Board five times requesting that proper accommodation be made available to the applicant. A case conference was held on 14 March 1997 where it was agreed that his needs would be met in a high support therapeutic unit for 16-18 year olds but that no such unit existed in Ireland and could not be put in place in time for the applicant’s needs. It was decided that the Board would look into placements outside Ireland and into interim options in Ireland.

On 28 April 1997 the High Court appointed a guardian ad litem and gave the applicant leave to apply for judicial review (citing, inter alia , the Board and the Attorney General as respondents) for (a) a declaration that, in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents deprived the applicant of his constitutional rights under, in particular, Articles 40.1, 40.3.1, 40.3.2 and 42.5 of the Irish Constitution. The applicant referred in this context to his being a child at risk namely, dangerous to himself and potentially to others, and pointed out that the lack of appropriate care meant that his rights had not been vindicated; (b) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested. The grounds submitted by the applicant related to the Board’s failure to comply with its statutory duties to provide such accommodation under sections 4, 5, 16 and 38 the Child Care Act 1991; and (c) damages, although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice (hence the application for an order of mandamus and an injunction).

The application for interlocutory relief (namely, for relief until the making of a final order following the hearing of the case) came before the High Court on 6, 12, 21 and 30 May 1997. However, on 4 June 1997 the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull. He was operated on and subsequently discharged on 12 June 1997 and spent that night in bed and breakfast accommodation. On 13 June 1997 the application was adjourned on the basis that the applicant would reside in the hostel (run by the priest) under continuous twenty-four hour supervision of child care workers of the Board. The Board was to continue its enquiries into a suitable facility. On 17 June 1997 the High Court ordered that the applicant reside in another hostel ( Kilnacrot Abbey) under the care of social workers of the Board.

The interlocutory matter was again considered by the High Court on 26 and 27 June 1997. Evidence was presented to the effect that the applicant’s continued residence in that hostel was no longer feasible. Evidence was also heard from the Board’s leader responsible for the applicant’s case who stated that the Board’s facilities could no longer cater for the applicant. A consultant psychiatrist at the Central Mental Hospital in Dublin gave evidence to the effect, inter alia , that he knew of no services in the State that could even start to address the problems the applicant represented. A report was presented detailing a number of serious incidents including threats of assault made by the applicant and the court heard the legal submissions of the parties.

In its judgment of 27 June 1997, the High Court described the applicant’s history and family situation as “quite appalling”. He was one of a family of five children. His father was serving a life sentence for murder and serious sexual offences. His mother lived a “chaotic lifestyle” refusing to settle in any type of permanent accommodation. Of his siblings, only one led a normal life. The others had been in care or in detention or were drugs’ users.

On the evidence before it, the Court accepted that the applicant was not mentally ill but that he had a serious personality disorder; that he was a danger to himself and to others; that he had a history of criminal activity, violence and arson; that he had absconded from non-secure institutions; that he had failed to co-operate with the Board and its staff; and that he had failed to co-operate in the carrying out of a psychiatric assessment of him in the past. It was “common case” that the applicant required a “secure unit where he can be detained and looked after” and that no such unit existed in Ireland. The High Court judge considered the welfare of the child as paramount, noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before it as to the child’s needs and the facilities available would resolve the conflict. The court considered that there were four possible options.

In the first place, the High Court could make no order thereby releasing the applicant from the custody of the Board to fend for himself. However, given the real risk of serious self-injury possibly even resulting in death, this option was excluded. Secondly, the applicant could be sent back to Kilnacrot Abbey. However, given the danger he posed to himself and others and his previous lack of co-operation, he ruled out this possibility. The third option was the Central Mental Hospital but the evidence before the High Court and the applicant’s own preference ruled this out as an option.

The fourth option was the applicant’s detention in St. Patrick’s Institution, which option was adopted with “considerable reluctance” by the court as the only manner of vindicating the applicant’s constitutional rights. The High Court acknowledged that it was a penal institution. However, having noted the conflicting constitutional rights of the applicant, the applicant’s needs, the constitutional obligations of the State to the applicant and the relevant jurisprudence of the High and Supreme Courts in similar cases, the High Court judge was satisfied that the evidence supported his findings that, in the absence of any other facility within the State, the place most suitable to ensure the applicant’s welfare was St. Patrick’s Institution and that he had jurisdiction to make the order (its inherent jurisdiction as developed by the jurisprudence). It was noted that the applicant had been in that institution previously and seemed to have done well there. Accordingly, he ordered that the applicant be brought to St. Patrick’s Institution by the police and be detained there for three weeks (until 18 July 1997), all parties agreeing that detention for longer was not appropriate. The High Court judge pointed out in conclusion that he was:

“extremely unhappy at having to make this order … but of the four options available to me it is the one which, in my view, is best suited to the welfare and needs of this applicant in the short-term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to me that from the welfare of this applicant it is the least offensive and in my view his welfare will be best served by being committed there as I have ordered.”

Certain conditions were attached to the order by the High Court. The applicant was to be subject to the “normal discipline” of that institution and was to have a full psychiatric assessment. The “fullest co-operation” was requested by the High Court between the Board and the authorities of the institution as regards access by the staff of the Board to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in St. Patrick’s Institution, provided that that did not create insuperable difficulties from the point of view of the management of the institution. In particular, the High Court recommended that the normal visiting restrictions applicable be waived as much as possible in the vital twenty-four hours after the applicant’s detention.

Moreover, the High Court’s concerns about the suicide risks presented by the applicant were to be notified to the Governor of St. Patrick’s Institution and the appropriate facilities were to be put in place in this respect. The High Court was to receive a report by the psychiatric staff of St. Patrick’s Institution and by the Board on the applicant’s progress, if any, and on his general well-being by 16 July 1997. There was to be liaison between the Board and the guardian ad litem , the latter of whom was to obtain the reports to be prepared for the court on the applicant . In the meantime, the Board was to continue to try to find a suitable place for the applicant’s needs outside of the jurisdiction and the matter was to be reviewed by the High Court on 18 July 1997.

The applicant appealed to the Supreme Court. He referred to the Board’s failure to fulfil its statutory duties under sections 36 and 38 of the Child Care Act 1991 and to respond to his constitutional rights under Articles 42(5). He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under Article 42(5) and Article 40(4)(1). He also dealt, in his submissions, with the place of detention proposed by the High Court arguing that, if detention was necessary and lawful to protect and vindicate a child’s rights, detention in a penal institution was not. A penal institution is a place of punishment, the effect of detention there, with or without conviction, constitutes punishment and it was completely different to a high security unit staffed by qualified child care workers and operated in a manner consistent with Article 42 of the Convention. He then argued that his placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the State to comply with its constitutional duties through the Board. He raised Article 5 and, in particular, Article 5 § 1(d) of the Convention.

The Supreme Court heard the applicant’s appeal on 9 July 1997 and reserved judgment. Judgment was delivered on 16 July 1997 and, by 4 votes to one, it rejected the appeal. The Chief Justice gave the main judgement of the Supreme Court (two judges concurring) and described the issues before him as being whether the High Court had jurisdiction to order the detention of the applicant and, if so, whether that jurisdiction extended to making an order directing the applicant’s detention in a penal institution and, if so, whether the jurisdiction was properly exercised in the applicant’s case.

The Chief Justice noted that (apart from the particular jurisdiction assigned by the Constitution and by Statute) the High Court has an inherent jurisdiction “as ample as the defence of the Constitution requires”. The Chief Justice noted the conflicting constitutional rights of the applicant. On the one hand, he had the right to liberty (Article 40) and, on the other hand, he had the uneumerated right to be “fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her personality and dignity as a human being”. The Chief Justice accepted that the High Court could be called upon to establish a priority of such rights as the case demands. He noted that all parties agreed that the applicant’s welfare (which was of paramount importance) required his detention in a “safe and secure unit” but he regretted that the High Court judge was forced, by reason of the lack of any suitable facility, to order the applicant’s detention in a penal institution.

In conclusion, the Chief Justice was satisfied that the High Court had jurisdiction to make the order it did, that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that the High Court was correct in exercising such jurisdiction for a short period of time. He added, however, that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant.

A fourth judge considered that the High Court’s jurisdiction had not been directly disputed by the parties, and went on to agree with the option chosen by the High Court. The fifth and dissenting judge in the Supreme Court considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child’s rights and for the Board to address its statutory duties and obligations. It was, in that judge’s view, a step too far to order the child’s detention in a penal institution having regard to his moral, intellectual, physical and social welfare and his rights to liberty, equality and bodily integrity.

The High Court heard further expert evidence on 18 July 1997 and apparently the applicant had been co-operative in St. Patrick’s Institution. The High Court continued the applicant’s detention in St Patrick’s Institution until 23 July 1997 on the conditions previously applicable, the Board being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant.

On 23 July 1997 the Board submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by 28 July 1997. The Board also indicated that the applicant was to travel to the United Kingdom to be assessed with a view to possible placement there. The applicant submitted that he had hoped to be released from St. Patrick’s Institution that same day and that he was not consenting to any further loss of liberty. The applicant’s guardian ad litem considered that the applicant should not be left on the street. The High Court directed the applicant’s continued detention in St. Patrick’s Institution until 28 July 1997 and that every effort should be made by the Board that the property identified could receive the applicant by 28 July 1997.

On 28 July 1997 the applicant was released by order of the High Court from St. Patrick’s Institution and placed in accommodation of the Board under permanent supervision. He was to be allowed to leave the premises three times a week for three hours. Leave was also given to take the applicant to the United Kingdom for assessment on 31 July 1997.

The applicant then absconded from that property and a warrant for his arrest was issued by the High Court on 6 August 1997. He was arrested and brought before the High Court on 8 August 1997. On the same day, and having heard submissions from counsel for the applicant and the Board together with the evidence on behalf of the Board and of the applicant, the High Court again ordered the applicant’s detention in St. Patrick’s Institution until 26 August 1997.

Conditions were again applied by the High Court to this detention. He was to be subject to the discipline of St. Patrick’s Institution. A full assessment of the applicant’s drug dependency was to be made, the assessment to include any outpatient assessment and/or treatment consistent with the requirements of St. Patrick’s Institution. There was to be liaison between the authorities of St. Patrick’s Institution and the Board. By 26 August 1997 the High Court was to be in possession of a report in relation to the applicant’s drug addiction problem prepared by the Board and the staff of St. Patrick’s Institution. The guardian ad litem was to have liberty to liase with the authorities of St. Patrick’s Institution and with the Board. The Governor was requested by the High Court to dispense with the visiting restrictions during the first 24 hours of the applicant’s detention in so far as possible and consistent with the good running of the institution, to allow the officials of the Board to have full access to the applicant. The matter was adjourned until 26 August 1997.

On 26 August 1997 the High Court ordered the applicant’s release to the custody of the Board on the same terms as the order of 28 July 1997.

On 3 November 1997 the applicant re-entered his judicial review proceedings. On 10 November 1997 evidence was heard from the Social Work Team Leader on the applicant's case (Ms F) and the applicant was placed in the care of the Board subject to his attendance at City Motor Sports for practical and vocational education. The case was adjourned to 24 November 1997. On 24 November 1997 the case was adjourned to 15 December 1997 to await a progress report from City Motor Sports. On 15 December 1997 the case was adjourned to the following day. On 16 December 1997 the case was adjourned to 19 December 1997 to allow proposals to be made by the Board.

On 19 December 1997 the High Court heard evidence from Ms F in relation to possible long-term accommodation and the case was put in for mention on 22 December 1997. On 22 December 1997 the case was put in for mention on 5 January 1998 to allow the Board more time to find appropriate long-term accommodation. On 5 January 1998 evidence was heard from Ms F and the case was put in for mention on 9 January 1998 in order to give the Board further time. On 9 January 1998 the Board informed the High Court that suitable temporary accommodation was to be ready by February 1998 and the case was adjourned for further discussion to 12 January 1998. On 12 January 1998 the High Court heard evidence from Ms F. It was decided to maintain the care order in force and to adjourn the case until 16 February 1998.

On 16 February 1998 the High Court was advised that the applicant had been moved to new short-term accommodation of the Board under 24 hour supervision. The report of City Motor Sports on the applicant was presented and the case was adjourned until 2 March 1998 to allow for his progress to be assessed. On 2 March 1998 the case was adjourned to 23 March 1998 to allow the Board time to prepare recommendations for the reduction of the supervision of the applicant. On 23 March 1998 the High Court ordered that the Board’s recommendations be put in place. The recommendations referred to the proposed timing of the withdrawal of supervision, assisting the applicant to obtain his own accommodation and social welfare benefits, the continuation of all necessary social work support after the official care order expired and the informing of the Board’s senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and others.

The applicant remained in the Board’s accommodation until April 1998 when he returned to live in the same hostel in which he had stayed in March 1997. On 30 April 1998 his judicial review proceedings were adjourned to 1999. The applicant’s 18 th birthday was on 9 July 1998. He stayed on in the hostel until October 1998 when he was removed to hospital after causing injury to himself. After discharge from the hospital he lived rough on the streets. Having been charged with minor offences he was then charged with more serious offences, was arrested and charged with, inter alia , threatening his uncle with a knife. He was remanded for trial and detained on remand in Mountjoy prison.

B. Relevant domestic law and practice

1. The Constitution

The relevant provisions of the Constitution are set out hereunder.

Article 40.1 :

“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

Article 40.3.1 :

“The State guarantees in its laws to respect, and in as far as practicable, by its law to defend and vindicate the personal rights of its citizens.”

Article 40.3.2 :

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property of every citizen.”

Article 40.4.1 :

“No citizen shall be deprived of his personal liberty save in accordance with law.”

Article 42.3 :

“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”

Article 42.5 :

“In exceptional cases, where parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of parents, but always with due regard for the natural and imprescriptable rights of the child.”

2. The Child Care Act 1991

This Act (“the 1991 Act”) sets out the duties of a health board in relation to the care and protection of children residing in its administrative area. Section 2(1) defines a child as “a person under the age of 18 years other than a person who is or has been married”.

Section 3 provides, inter alia , as follows:

“1. It should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

2. In the performance of this function, a health board shall -

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise -

( i ) regard the welfare of the child as the first and paramount consideration, and;

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to              the wishes of the child;

and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in a family.”

Section 4(3)(a) provides, in so far as relevant, as follows:

“Where a health board has taken a child into its care under this section, it shall be the duty of the board -

(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child …”

Section 5 provides as follows:

“Where it appears to a health board that a child in its area is homeless, the Board shall enquire into the child’s circumstances, and if the Board is satisfied that there is no accommodation available to him which he can reasonably occupy, then, unless the child is received into care of the Board under the provisions of this Act, the Board shall take such steps as are reasonable to make available suitable accommodation for him.”

Section 36 provides, in so far as relevant, as follows:

“(1) where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests - …

(b) by placing him in residential care (whether in a children’s residential centre registered under part VIII , in a registered home maintained by the health board or in a school or other suitable place of residence), or …

(d) by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.

(3) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.”

Section 38 provides, in so far as relevant, as follows:

“1. A health board shall make arrangements with the registered proprietors of children’s residential centres or with other suitable persons to ensure the provision of an adequate number of residential places for children in its care;

2. A health board may, with the approval of the Minister, provide and maintain a residential centre or other premises for the provision of residential care for children in care.”

3. Secure and special care units for minors with special needs

In 1997 the Board had two high support units in existence for children with serious behavioural and emotional problems between the ages of 12 and 18 years of age. A unit in Wicklow had 8 places and a unit in Dublin had 4 places. In that year, approval was given by the Department of Health to the Board to plan and develop a 24 place special care unit both in Ballydowd and in Portrane . Subsequently, the matter was reviewed to allow consideration of the costs of these units and to assess the need for them. An expert consultant was appointed to consider such needs in April 1998.

Following the submission of that expert report, the completion of the special care unit in Ballydowd was planned for March 2000. Construction of the Portrane unit proceeded as a high support unit and construction was planned to commence in early 2000 and to be completed by mid-2001. A special care unit is designed to operate to a high standard of security whereas a high support unit, while of similar design, operates to a lower standard of physical security.

In July 1998 the High Court gave judgment in a case concerning the appropriate care of a minor with special needs (D.B. (a minor suing by his mother and next friend S.B. ) v. the Minister for Justice, the Minister for Health, the Minister for Education, Ireland, the Attorney General and the Eastern Health Board, (1999) 1 ILRM 93). That judgment pointed out as follows:

“ First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type with which I am dealing. In so doing it observed the Constitutional proprieties owed by the Court to the administrative branch of government. It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right. But it expected those steps to be taken as soon as reasonably practicable.

Secondly, if the declaration was to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it has to be taken expeditiously. Otherwise the minors, most of whom are of the age of 12 to 14 years, would have achieved majority within a few years of the declarations being granted without any benefit being gained from them.

Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to an including the loss of their very lives.

Finally, due regard should be had to the efforts made on the part of the Minister to address the difficulties to date. If the Court were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister’s response was proportionate to the rights which fell to be protected, then normally no order of the type sought ought to be made.”

the Minister for Health to make available to the Eastern health Board sufficient funding to allow the eastern Health board to build, open and maintain a secure 24 bed High Security Unit at Portrane , Co. Dublin and the Minister for Health to take all steps necessary  and to do all things necessary to facilitate the building, opening and maintenance of a secure 24 bed High Secure unit at Portrane , Co. Dublin. The said Unit to be in operation not later than 1 October 2001.”

4. St. Patrick’s Institution

The Prisons’ Act 1970 enabled the Minister for Justice, for the purpose of the rehabilitation of offenders, to provide places other than prisons for the detention of persons who have been sentenced to penal servitude or imprisonment or to detention in St. Patrick’s Institution.

(a) “Saint Patrick’s Institution Regulations 1960” (Statutory Instrument No. 224 of 1960)

These regulations deal with certain matters concerning the functioning of that institution. Section 4 provides that an inmate shall, in so far as the length of his sentence permits, be given such training and instruction and be subjected to such disciplinary and moral influences as will conduce to his reformation and the prevention of crime. Section 5 provides that, subject to the inmate not being declared unfit by the medical officer, an inmate is to be allowed regular physical recreation and exercise and is to be given such regular physical exercise as may be necessary to promote his health and physical well-being. Section 7 provides that, if the Governor is of the opinion that the receipt of letters and visits and the writing of letters by the inmates in addition to those already permitted outside of these regulations will promote the social rehabilitation of the prisoner, then he may permit the inmate to receive so many letters and visits and to write so many letters in addition to those already permitted other than by these regulations as the Governor thinks proper. Section 10 of those regulations provides that:

“So much of the Rules for the Government of Prisons 1947 … and the Rules for the Government of Prisons 1955 … as are made under the Prisons’ Acts 1826 and 1956 shall, in so far as they are not inconsistent with these Regulations, apply and have effect in relation to inmates and the Institution in like manner as they apply and have effect in relation to prisoners and prisons.”

(b) An information note prepared by the Department of Justice, Equality and Law Reform

This note describes the facilities at St. Patrick’s Institution as follows. Male offenders aged between 16 and 21 may be committed to St. Patrick’s Institution either while on remand or to serve sentences. It is considered to provide a more suitable environment for young offenders.

The majority of male offenders aged between 16 and 17 years of age are held in St. Patrick’s Institution. The regime is described as liberal and as relaxed as possible within the confines of a closed institution. Staffing levels are high, reflecting the long out-of-cell periods in comparison with international norms.

Inmates are unlocked at 8.15 am when they collect breakfast and then return to their cells; at 9.15 am they are unlocked to attend a place of employment or school; at 12.15 pm they return to their cells when they collect dinner and then return to their cells; at 2.15 pm they are unlocked to attend a place of employment or school; at 4.10 pm they return to their cells, collect their evening meal and then return to their cells; at 5.15 pm they are unlocked for evening recreation; at 7.30 pm they return to their cells, collect supper and return again to their cells; at 8.00 pm the cells are locked; and at 10.00pm lights are switched off.

All sentenced prisoners are required to work, the workshops not being operated on a commercial basis and are only for training purposes. The emphasis is on training in skilled or semi -skilled work.

A total of 8 full-time equivalent staff are attached to the Education Unit. Along with work training, education comprises one of the two main activities of the inmates. A broad programme of education is offered consisting of the main school subjects, adult basic education, creative activities, social education and physical education.

Inmates are free to recreate at weekends, in the evenings and when not attending work or education classes. Facilities include television, table games, a library a gym and outdoor games.

In general, every prisoner is entitled to at least one visit per week, but in practice visits are allowed more frequently where circumstances permit. Visits in open centres are unsupervised and may be granted on demand. Telephone calls are frequently demanded and permitted. Inmates serving sentences are generally allowed to send two letters per week. Extra letters to family or to legal representatives may be allowed on request. An inmate awaiting trial may send out as many letters as he likes and there is no limit to the number of letters that may be received.

Particular emphasis is placed on the rehabilitation of young offenders in custody and, accordingly, a wide range of services are available. An education service is provided in conjunction with Vocational Education Committees and teachers work in the prison on a full or part-time basis. Training in various vocational skills is available to offenders including juveniles with some inmates going on to take City and Guilds examinations. Library facilities are provided in conjunction with the Public Library service and a range of publications including newspapers and magazines are available for recreational purposes. A range of sports and other recreational facilities are available. The prison psychology service together with the probation and welfare services participate in the positive management of sentences and provide counselling to help offenders to cope during custody. A medical service is available including a drug detoxification programme together with addiction counselling, the latter of which is provided in conjunction with and by various outside agencies such as Alcoholics Anonymous and Narcotics Anonymous.

COMPLAINTS

The applicant complains about his detention in St. Patrick’s Institution between 27 June and 28 July 1997.

He complains, in the first place, under Article 3 of the Convention arguing that his detention in St. Patrick’s Institution amounted to inhuman and degrading treatment and punishment. He points out that he was a minor in need of special care but he was detained in a penal institution with all that involved. In addition, he was the only person not charged or convicted of a criminal offence and his unique status caused other detainees to believe that he was a serious sexual offender further to which he was insulted, humiliated, threatened and abused and he feared for his health and safety. Moreover, on each occasion he was brought to Court during his detention at St. Patrick’s Institution he was hand-cuffed to a prison officer. On 9 July 1997, on the occasion of his appeal to the Supreme Court, he was only released from hand-cuffs while in the courtroom on the application of his counsel.

He also invokes Article 5 of the Convention submitting that he was detained otherwise than “in accordance with a procedure prescribed by law”. His detention was not “for the purposes of educational supervision” or “for the purpose of bringing him before any competent legal authority” within the meaning of Article 5 § 1(d). The applicant also refers, in the context of Article 5, to his submissions under Article 3 and adds that, in failing to provide accommodation and care appropriate to the applicant’s special needs, the State caused his detention in a penal institution in violation of Article 5. Finally, he also invokes Article 5 § 5.

Moreover, the applicant invokes Article 8 of the Convention arguing that his detention for the relevant period in the relevant institution was an unjustifiable interference with his private and family life, his physical and moral integrity and with his honour, good name and reputation.

Finally, he argues that he was discriminated against in violation of Article 14 of the Convention as regards the above matters on the grounds of his social origin, birth or “other status”. He was discriminated against as compared to other minors placed in specialised residential institutions aimed at the proper care of minors; as compared to adults as no adult could have been detained in a penal institution in such circumstances and as compared to other citizens as he was detained in a penal institution without having been charged or convicted of a criminal offence.

THE LAW

1. The applicant raises complaints under Articles 3, 5, 8 and 14 as regards his detention when he was a minor in June and July 1997 in St. Patrick’s Institution, a penal institution.

The Government submit that the application is inadmissible, arguing that the applicant has not exhausted all domestic remedies. They refer to his statement grounding his application for leave to take judicial review proceedings, to the hearing before the High Court on 26 and 27 June 1997, to his written submissions to the Supreme Court dated 7 July 1997 and to his Notice of Appeal to the Supreme Court dated 30 June 1997. They point out that the applicant did not pursue every alleged violation of his constitutional rights which he now alleges are violations of Articles 3, 5, 8 and 14 of the Convention. He could have done so but he did not.

The applicant rejects the Government’s position, pointing out that he sought to have his constitutional rights vindicated both before the High and Supreme Courts in properly grounded and constituted constitutional proceedings. The response was to detain him in St. Patrick’s Institution. The applicant submits that he had no alternative remedy. He refers to the later and above-cited case of D.B. which demonstrates that more than a year after his High Court judgment the State was still failing to provide appropriate care and accommodation for minors with similar needs to his own.

The Court recalls that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible. To be effective the remedy must be capable of remedying the impugned state of affairs (no. 12742/87, Pine Valley Developments Ltd and Others v. Ireland, Dec. 3.5.89, D.R. 61, p. 206). It is also recalled that a declaratory action before the High Court, with the possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights. It is also recalled that in a legal system which provides constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (no. 24196/94, O’Reilly v. Ireland, Dec. 22.1.1996, D.R. 84-A, p. 72).

The burden of proving the existence of effective, sufficient and accessible remedies lies upon the State invoking non-exhaustion of domestic remedies (no. 12742/87, cited above). Moreover, Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism ( Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34).

The Court notes that the applicant opened to the High Court, in properly constituted constitutional proceedings, the relevant provisions of the constitution which guaranteed , inter alia , his right to liberty (Article 40(4)(1)), his personal rights (Article 40(3)(1)), his right to be held equal before the law (Article 40(1)) and his rights as a child (Article 42(3) and (5)). The High Court considered that the correct balance of the conflicting constitutional rights involved was his detention in St. Patrick’s Institution. Accordingly, the applicant appealed against this decision to the Supreme Court. Before the Supreme Court he again expressly invoked Articles 40(4)(1) and Article 42 of the Constitution, the necessity for the State to comply with its constitutional duties to him as a minor and the negative impact on a minor with his needs of detention in a penal institution.

The Court considers that the clear aim of the proceedings was to ensure that the State provide the applicant with appropriate care and accommodation, a matter which lies at the heart of this application. It finds that his proceedings before the High and Supreme Courts constituted a clear and direct method of exhausting effective domestic remedies in this respect. Specifically, the conflict between his right to liberty and his rights as a child were addressed by him before the High and Supreme Courts so that the constitutional remedy directly concerned his complaints to this Court under Article 5 of the Convention. These arguments also constituted an effective and direct manner of addressing his complaints under Article 3, 8 and 14 since all of the matters raised in the contexts of Articles 3, 8 and 14 arose as a direct consequence of his incarceration in a penal institution which he challenged.

Accordingly, the Court does not consider that the applicant’s complaints can be rejected as inadmissible on the grounds of a failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

2. Under Article 3 of the Convention, the applicant argues that his detention in St. Patrick’s Institution amounted to inhuman and degrading treatment and punishment for three reasons. He points out that he was a minor in need of special care but he was detained in a penal institution with all that involved. Secondly, he was the only person not charged or convicted of a criminal offence and his unique status caused other detainees to believe that he was a serious sexual offender further to which he was insulted, humiliated, threatened and abused and he feared for his health and safety. Thirdly, on each occasion he was brought to Court during his detention at St. Patrick’s Institution he was hand-cuffed to a prison officer. On 9 July 1997, on the occasion of his appeal to the Supreme Court, he was only released from the hand-cuffs while in the courtroom on the application of his counsel.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government reject the applicant’s contention pointing out that his detention in St. Patrick’s Institution was an unfortunate but temporary measure having regard to the evidence before the High Court including, in particular, the evidence that he was a danger to himself and to others. In addition, the conditions of St. Patrick’s Institution were not, of themselves, inhuman or degrading. The Government refer to the regulations governing that prison and to a note prepared by the Department of Justice, Equality and Law Reform as regards the facilities in the institution. While all these services were available to the applicant (apart from the educational facilities which were closed for August), he did not avail of them (and it was not open to the authorities to compel him) although it is clear from a medical report submitted by Government dated 20 August 1999 that the applicant had played football as that report noted that he had sprained his ankle doing so. Reference is made by the Government to the specific and additional conditions attached to his detention by the High Court and the Government is not aware of any complaint made by the applicant concerning the medical, psychiatric, educational or other facilities at St. Patrick’s Institution.

It is accepted by the Government that the applicant would have experienced some distress and trauma by his detention in that institution. However, the domestic courts had no choice, it was for as short a period as possible and its purpose was to protect the applicant. As to his handcuffing, it is the policy that all inmates of St. Patrick’s Institution be handcuffed and/or chained to staff while being brought to court, a measure which was necessary given the danger the applicant posed to himself and others.

The applicant points out that he was in a penal institution, in a special unit with serious offenders and subject to the normal discipline of the prison. He was a unique prisoner (since he was not on remand or convicted) and he was the subject of speculation that he was a serious sexual offender. The inhuman and degrading treatment arose from two aspects; he had not been convicted of any crime and, because a penal institution is a place of punishment, the effect of his detention was to punish him whatever the purpose of that detention. Secondly, he suffered by his detention in a penal institution, with all that entails, when he was a child with special needs. His handcuffing was entirely unnecessary and humiliating, particularly as he was not charged or convicted of any offences. As to the Government’s reliance on the regulations governing St. Patrick’s Institution, the applicant points out that there is no evidence of compliance with those regulations.

3. The applicant also invokes Article 5 of the Convention submitting that he was detained otherwise than “in accordance with a procedure prescribed by law”. His detention was not “for the purposes of educational supervision” or “for the purpose of bringing him before any competent legal authority” within the meaning of Article 5 § 1(d). The applicant also refers, in the context of Article 5, to his submissions under Article 3 and adds that in failing to provide accommodation and care appropriate to the applicant’s special needs, the State caused his detention in a penal institution in violation of Article 5. Finally, he also invokes Article 5 § 5 of the Convention.

Article 5, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

…

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government consider that it is patently unfounded to suggest that his detention was not in accordance with a procedure prescribed by law. The Government considers that his detention was in accordance with domestic and Convention law and was not arbitrary. In the first place, both the High and the Supreme Courts exercised their inherent jurisdiction based on the evidence before those courts to protect the applicant’s superior constitutional rights such as his right to life and which jurisdiction was confirmed by a clear line of jurisprudence to which the courts referred. Secondly and as to the ‘Convention’ lawfulness of his detention and the question of arbitrariness, the question of the applicant’s proper care and accommodation arose where there was a limited number of options available and the courts chose that one best suited to his needs and welfare and made it a short-term option.

As to Article 5 § 1(d), the Government maintain that his detention was consistent with Article 5 § 1(d) in that it was for the purposes of “educational supervision”. The Government accept that his detention amounted to a deprivation of liberty and that the applicant was in need of special care. However, the High Court was satisfied that such a period of detention was necessary to ensure the welfare and needs of the applicant in the short term. It was not simply possible to provide education and care to the applicant until he had been properly assessed and his behaviour controlled. In any event, it is submitted that the special care required was provided to the applicant prior to, during (referring to the facilities available in St. Patrick’s Institution) and after his detention. The Government would distinguish the present case from the Bouamar case ( Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129) - the period of detention in the present case was shorter, St. Patrick’s Institution’s facilities (particularly educational) were superior to Mr Boaumar’s place of detention, he was not in conditions of virtual isolation as was Mr Bouamar and the applicant’s detention was not “fruitless” as was noted in the Bouamar case given the alternatives to St. Patrick’s Institution, the danger the applicant posed to himself and others and the facilities available to him there. Moreover, the Court in the Bouamar case accepted that a brief period of detention in prison pending his placement elsewhere was not in breach of Article 5 § 1 and the present applicant’s detention was an “interim custody measure” (within the meaning of the Bouamar judgment) preliminary to a regime of accommodation and supervised education, the latter of which was put in place thereafter.

Finally and as regards Article 5 § 5, the Government submit that there has been no violation of Article 5 § 1 and therefore there is no requirement to provide an enforceable right to compensation.

The applicant submits that in order for his detention to be lawful, the order for detention must have contemplated the furtherance of the educational aim but there is no mention of educational supervision whatsoever in the order of the High Court for detention. Rather the applicant was to be subject to the discipline of that institution. It is clear that the applicant’s detention had nothing to do with education but was simply a mechanism to make up for the failure by the State to provide suitable facilities for children with his needs. He was detained in St. Patrick’s Institution because there was nowhere else to put him. While there was an inherent jurisdiction of the courts, there were no statutory provisions governing detention in such circumstances. He notes that the Board, in fact, argued before the High Court that the court had no jurisdiction to detain him in St. Patrick’s Institution.

The applicant essentially contends that the educational facilities in St. Patrick’s Institution have not been demonstrated to be sufficient for that institution to constitute the educational supervision required by Article 5 § 1(d). He takes issue with the general nature of the Government’s description of the facilities available - he submits that they do not describe what facilities were available at the time, what facilities were offered to the applicant (he not being a prisoner on remand or convicted), how and when those facilities were offered to him, when and where and with whom it was envisaged such educational courses would be undertaken by him or whether there was a waiting list of prisoners for such facilities. Neither is the number of prisoners at the relevant time in the institution set out, the number who supposedly engaged in education nor how much of their time was so spent. No indication is provided of how many prisoners are not so provided for and there is no evidence as to the level of education offered to each prisoner, the physical facilities offered (the number of classrooms, laboratories, libraries and other work rooms), the number of textbooks, computer terminals and other educational tools available. While the Government produce a medical report in which it is noted that the applicant played football, it does not detail the physical facilities available or the prisoners’ access to them or the number of staff employed to provide these services. Moreover, the Government fail to describe the staff made available to the applicant during his detention.

As to the above-cited Bouamar judgment, the applicant points out that the Bouamar case contemplated criminal matters and juvenile delinquency so that the duration and frequency of the detentions are of a different order in the present case. In addition, the Belgian regime was governed by statue whereas the detention of the applicant was not.

The applicant also submits that there was never any intention to provide educational supervision but rather to provide care and accommodation and, indeed, there was no legal obligation on the State to provide educational facilities to individuals over 16 years of age. As to the Government’s assertion that the applicant required detention for assessment and to control his behaviour, the applicant points out that he had already been assessed for the purposes of the High Court hearing which expert also submitted that he knew of no facilities in Ireland that would even begin to address the problems the applicant represented. Ireland did not put in place appropriate facilities for children with the applicant’s needs to meet its constitutional obligations to such children as set out in numerous cases including the D.B. case (cited above) and they still have not done so.

Finally, he maintains that there has been a breach of Article 5 § 1. Since there is no enforceable right to compensation for that breach, he argues that there has been a violation of Article 5 § 5.

4. Moreover, the applicant invokes Article 8 of the Convention arguing that his detention for the relevant period in the relevant institution was an unjustifiable interference with his private and family life, his physical and moral integrity and with his honour, good name and reputation. The applicant refers in this respect to the restrictions on his life consequent on his detention and, in particular, to the lack of a lawful basis for his detention, to his being handcuffed for his court appearances during his detention and to his position as a minor not convicted or on remand in a penal institution.

Article 8, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life, …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government accept an interference with the applicant’s private life but not an interference with his family life as he did not have a family life for a considerable period of time prior to his detention in St. Patrick’s Institution. The Government also contend that the restriction on his private life was in accordance with the law and necessary in a democratic society in that it was within the State’s margin of appreciation and a proportionate response to the situation which arose, they relying on the evidence before and the reasons given by the High and Supreme Courts.

The applicant maintains his complaint under Article 8 referring, in particular, to the dissenting opinion in the Supreme Court.

5. Finally, the applicant argues that he was discriminated against in violation of Article 14 of the Convention as regards all of the above matters on the grounds of his social origin, birth or “other status”. He was discriminated against as compared to other minors placed in specialised residential institutions aimed at the proper care of minors; as compared to adults as no adult could have been detained in a penal institution in such circumstances and as compared to other citizens as he was detained in a penal institution without having been charged or convicted of a criminal offence.

Article 14, in so far as relevant, reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as … national or social origin, … birth or other status.”

The Government submit that, while he was undoubtedly treated differently to other minors, such difference in treatment was not a discriminatory difference in treatment given the reasons for that detention as demonstrated by the evidence before the High and Supreme Courts and the reasons given for their judgments. In particular, the evidence showed the absence of a secure facility for minors in the applicant’s position and his need for such a facility in light of the danger he posed to himself and to others. If other children had therefore come before the courts with the same needs and problems, the court would have treated those children in precisely the same way.

The applicant maintains his complaint and refers, in particular, to the dissenting judgment in the Supreme Court.

6. The Court notes that, in outlining the facts of his case with his initial application, the applicant referred to two periods of detention in St. Patrick’s Institution namely, from 27 June to 28 July 1997 and from 8 August to 26 August 1997. His complaints were, however, formulated only in terms of the first period of detention. The Government point to this in their observations submitting that it appears that the applicant does not pursue any complaint as regards that second period of detention. The applicant does not address this issue in his observations. The Court concludes that the applicant does not make separate complaints under Articles 3, 5, 8 and 14 in relation to this second period of detention. However, in so far as the facts of that second period of detention are relevant to his complaints about the first period of detention, the Court will, nevertheless, rely on those facts.

In such circumstances, the Court considers that the applicant's complaints about his detention in St. Patrick’s Institution between 27 June and 28 July 1997 raise serious issues under Articles 3, 5, 8 and 14 which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President

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