Information Note on the Court’s case-law 194

March 2016

Blokhin v. Russia [GC] - 47152/06

Judgment 23.3.2016 [GC]

Article 5

Article 5-1-d

Educational supervision

Thirty-day placement of minor in detention centre for young offenders to “correct his behaviour”: violation

Article 3

Degrading treatment

Inhuman treatment

Failure to provide adequate medical care for minor during detention to “correct his beha viour”: violation

Article 6

Criminal proceedings

Article 6-1

Criminal charge

Proceedings leading to minor’s placement in detention centre for young offenders to “correct his behaviour”: Article 6 applicable

Article 6-3

Rights of defence

Lack of adequate procedural guarantees in proceedings leading to minor’s placement in detention centre for young offenders to “correct his behaviour”: violation

Facts – The applicant, who at the material time was twelve years old and suffering from attention-deficit hyperactivity disorder (ADHD), was arrested and taken to a police station on suspicion of extorting money from a nine-year old. The authorities found it es tablished that the applicant had committed offences punishable under the Criminal Code but, since he was below the statutory age of criminal responsibility, no criminal proceedings were opened against him. Instead he was brought before a court which ordere d his placement in a temporary detention centre for juvenile offenders for a period of thirty days in order to “correct his behaviour” and to prevent his committing further acts of delinquency. The applicant alleged that his health deteriorated while in th e centre as he did not receive the medical treatment his doctor had prescribed.

In a judgment of 14 November 2013 (see Information Note 168 ), a Chamber of the Court held unani mously that there had been violations of Article 3 of the Convention (on account of the lack of adequate medical treatment for the applicant’s condition), of Article 5 (on account of the applicant’s detention in the temporary detention centre, which was he ld to have been arbitrary) and of Article 6 § 1 in conjunction with Article 6 § 3 (c) and (d) (on account of the lack of adequate procedural guarantees in the proceedings leading to his placement). The case was referred to the Grand Chamber at the Governme nt’s request

Law

Article 3: In line with established international law, the health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community. The authorities should always be guided by the child’s best interests and the child should be guaranteed proper care and protection. Moreover, if the authorities are considering depriving a child of his or her liberty, a medical assessment should be made of the child’s state of health to determine whether or not he or she can be placed in a juvenile detention centre.

In the instant case, there had been sufficient evidence to show that the authorities were aware that the applicant was suffering from ADHD upon his admission to the temporary detention centre and was in need of treatment. Moreover, the fact that he was hospitalised the day after his release, and kept in the psychiatric hospital for almost three weeks, indicated that he was not given the necessary treatment for his co ndition at the temporary detention centre. The applicant had thus established a prima facie case. For their part, the Government had failed to show that the applicant received the medical care required by his condition during his thirty-day stay at the tem porary detention centre where he was entirely under the control and responsibility of the staff. There had thus been a violation of the applicant’s rights under Article 3 on account of the lack of necessary medical treatment at the temporary detention cent re, having regard to his young age and particularly vulnerable situation as an ADHD sufferer.

Conclusion : violation (unanimously).

Article 5 § 1: The Grand Chamber confirmed the Chamber’s finding that the applicant’s placement for thirty days in the tempor ary detention centre amounted to a deprivation of liberty within the meaning of Article 5 § 1. The Chamber had noted in particular that the centre was closed and guarded, with twenty-four-hour surveillance to ensure inmates did not leave the premises witho ut authorisation and a disciplinary regime enforced by a duty squad.

The Grand Chamber agreed with the Chamber that the applicant’s placement did not come within any of sub-paragraphs (a), (b), (c), (e) or (f) Article 5 § 1 of the Convention. It therefore focused its examination on whether the placement was in accordance with Article 5 § 1 (d) (detention for the purposes of educational supervision).

The Grand Chamber reiterated that the words “educational supervision” must not be equated rigidly with notio ns of classroom teaching: in the context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned. Furthe r, detention for educational supervision must take place in an appropriate facility with the resources to meet the necessary educational objectives and security requirements.

Turning to the facts of the applicant’s case, it noted that placement in a tempo rary detention centre was a short-term, temporary solution and could not be compared to a placement in a closed educational institution, which was a separate and long-term measure intended to try to help minors with serious problems. The Grand Chamber fail ed to see how any meaningful educational supervision, to change a minor’s behaviour and offer appropriate treatment and rehabilitation, could be provided during a maximum period of thirty days.

While the Grand Chamber accepted that some schooling was provi ded in the centre, it considered that schooling in line with the normal school curriculum should be standard practice for all minors deprived of their liberty and placed under the State’s responsibility, even when they were placed in a temporary detention centre for a limited period of time. Such schooling was necessary to avoid gaps in their education. The provision of such schooling did not, however, substantiate the Government’s argument that the applicant’s placement in the centre was “for the purpose” of educational supervision. On the contrary, the centre was characterised by its disciplinary regime rather than by the schooling provided.

It was also of importance that none of the domestic courts had stated that the applicant’s placement was for educati onal purposes. Instead, they referred to “behaviour correction” and the need to prevent the applicant from committing further delinquent acts, neither of which was a valid ground covered by Article 5 § 1 (d) of the Convention. Since the detention did not f all within the ambit of any of the other sub-paragraphs of Article 5 § 1, there had been a violation of that provision.

Conclusion : violation (unanimously).

Article 6 § 1 in conjunction with Article 6 § 3 (c) and (d): The applicant complained that the proc eedings relating to his placement in the temporary detention centre had been unfair in that he had been questioned by the police without his guardian, a defence lawyer or a teacher present and had not had the opportunity to cross-examine witnesses against him during the proceedings.

(a) Applicability – The Grand Chamber saw no reason to depart from the Chamber’s findings that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention. Like the C hamber, it stressed the need to look beyond appearances and the language used and to concentrate on the realities of the situation. The placement for thirty days in the temporary detention centre for juvenile offenders had clear elements of both deterrence and punishment (the Chamber had noted that the centre was closed and guarded to prevent inmates leaving without authorisation and that inmates were subject to constant supervision and to a strict disciplinary regime).

The Grand Chamber also rejected the G overnment’s contention that the complaints should be considered under Article 5 § 4 of the Convention. In the Grand Chamber’s view, since the proceedings taken against the applicant concerned the determination of a criminal charge, the applicant’s complain ts should be seen in the context of the more far-reaching procedural guarantees enshrined in Article 6 of the Convention rather than Article 5 § 4.

Article 6 was therefore applicable.

Conclusion : preliminary objection dismissed (unanimously).

(b) Merits – The applicant was only twelve years old when the police took him to the police station and questioned him and thus well below the age of criminal responsibility (fourteen years) set by the Criminal Code for the offence he was accused of. He had therefore been in need of special treatment and protection by the authorities. It was clear from a variety of international sources* that any measures against him should have been based on his best interests and that from the time of his apprehension by the police h e should have been guaranteed at least the same legal rights and safeguards as those provided to adults. Moreover, the fact that he suffered from ADHD, a mental and neurobehavioural disorder, made him particularly vulnerable and in need of special protecti on.**

(i) Right to legal assistance – The Court considered it established that the police did not assist the applicant in obtaining legal representation. Nor was the applicant informed of his right to have a lawyer and his grandfather or a teacher present . This passive approach adopted by the police was clearly not sufficient to fulfil their positive obligation to furnish the applicant – a child suffering from ADHD – with the necessary information enabling him to obtain legal representation. The fact that the domestic law did not provide for legal assistance to a minor under the age of criminal responsibility when interviewed by the police was not a valid reason for failing to comply with that obligation. Indeed, it was contrary to the basic principles set out in international sources requiring minors to be guaranteed legal, or other appropriate, assistance.***

Furthermore, the confession statement, made in the absence of a lawyer, was not only used against the applicant in the proceedings to place him in th e temporary detention centre but actually formed the basis, in combination with the witness statements, for the domestic courts’ finding that his actions contained elements of the criminal offence of extortion, thus providing grounds for his placement in t he centre. The absence of legal assistance during the applicant’s questioning by the police had irretrievably affected his defence rights and undermined the fairness of the proceedings as a whole, in breach of Article 6 §§ 1 and 3 (c).

(ii) Right to obtai n the attendance and examination of witnesses – Neither the child from whom the applicant was alleged to have extorted money nor the child’s mother was called to the hearing to give evidence and provide the applicant with an opportunity to cross-examine th em, despite the fact that their testimonies were of decisive importance to the pre-investigation inquiry’s conclusion that the applicant had committed extortion. There was no good reason for their non-attendance. Moreover, in view of the fact that the appl icant had retracted his confession, it was important for the fairness of the proceedings that those witnesses be heard. That safeguard was even more important when, as here, the matter concerned a minor under the age of criminal responsibility in proceedin gs determining such a fundamental right as his right to liberty. Having regard to the fact that the applicant risked being deprived of his liberty for thirty days – a not negligible length of time for a twelve-year-old boy – it was of utmost importance tha t the domestic court guarantee the fairness of the proceedings by ensuring that the principle of equality of arms was respected. In the absence of any counterbalancing factors to compensate for the applicant’s inability to cross-examine the witnesses at an y stage of the proceedings,the applicant’s defence rights, in particular the right to challenge and question witnesses, had been restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d).

***

The instant case, in which the minor applicant had enjoyed significantly restricted procedural safeguards under the Minors Act 1999 compared to those afforded criminal defendants by the Code of Criminal Procedure, illustrated how the legislature’s intentio n to protect children and ensure their care and treatment could come into conflict with reality and the principles requiring proper procedural safeguards for juvenile delinquents.

In the Grand Chamber’s view, minors, whose cognitive and emotional developme nt in any event required special consideration, and in particular young children under the age of criminal responsibility, deserved support and assistance to protect their rights when coercive measures were applied in their regard albeit in the guise of ed ucational measures. Adequate procedural safeguards had to be in place to protect the best interests and well-being of the child, certainly when his or her liberty was at stake. To find otherwise would be to put children at a clear disadvantage compared wit h adults in the same situation. In this connection, children with disabilities may require additional safeguards to ensure they are sufficiently protected. This does not mean, however, that children should be exposed to a fully-fledged criminal trial; thei r rights should be secured in an adapted and age-appropriate setting in line with international standards, in particular the Convention on the Rights of the Child.

In sum, the applicant had not been afforded a fair trial in the proceedings leading to his p lacement in the temporary detention centre.

Conclusion : violation (eleven votes to six).

Article 41: EUR 7,500 in respect of non-pecuniary damage.

* See, for instance, Council of Europe Recommendation No. R (87) 20; Council of Europe Recommendation (2003)2 0; Council of Europe Guidelines on child friendly justice, Guidelines 1, 2, and 28-30; the Article 40 of the Convention on the Rights of the Child, 1989, and General Comment No. 10, point 33; and Rule 7.1 of the Beijing Rules.

** Council of Europe Guidelines on child friendly justice , Guideline 27; Article 23 of the Convention on the Rights of the Child 1989, and General Comment No. 9 (The rights of children with disabilities), points 73 and 74.

*** See, for example, Convention on the Rights of the Child , Article 40 § 2 (b) (ii), and the comments thereto; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), Rule 7.1; and Council of Europe Recommendation No. R (87) 20 , point 8.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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