ECHR Article 5-1
Deprivation of liberty
Thirty-day placement of minor in detention centre for young offenders to ‘correct his behaviour’: violation
Article 5-1-d
Educational supervision
Thirty-day placement of minor in detention centre for young offenders to ‘correct his behaviour’: violation
Article 6
Criminal proceedings
Article 6-1
Criminal charge
Determination (criminal)
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 and enuresis, was arrested and taken to a police station on suspicion of extorting money from a nine-year old. On the strength of the applicant’s confession and the statements of the alleged victim and his mother, the authorities found it established that the applicant had committed offences punishable under the Criminal Code. Since the applicant was below the statutory age of criminal responsibility no criminal proceedings were opened against him. Instead he was brought before a court which ordered his placement in a temporary detention centre for minor 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 the centre as he did not receive the medical treatment his doctor had prescribed.
Law – Article 3: It was uncontested that the applicant was suffering from attention-deficit hyperactivity disorder and enuresis at the time of his detention. However, the paediatrician who supervised him in the detention centre had no expertise in the treatment of his mental disorder and there was no evidence before the Court that the applicant was examined by a neurologist or a psychiatrist, despite repeated recommendations that he should be, or that the medication he had been prescribed by a psychiatrist before his placement was ever administered. That lack of expert medical attention was unacceptable and it was a matter of concern that the applicant’s condition had deteriorated during his detention to the point where he had to be taken to hospital with neurosis on the day after his release. The lack of adequate medical treatment amounted to inhuman and degrading treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
Article 5: The Court reiterated that the starting-point for determining whether there has been a deprivation of liberty has to be the concrete situation of the individual concerned, with account being taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. The applicant had been placed for thirty days in a detention centre that was closed and guarded to exclude any possibility of leaving the premises without authorisation. There was an entry checkpoint and an alarm to prevent inmates from escaping. Inmates were under strict, almost constant, supervision. They were routinely searched on admission and all their personal belongings were confiscated. Discipline was maintained by duty squads and breaches were punishable by disciplinary sanctions. These elements were clearly indicative of a deprivation of liberty.
As regards the grounds for the deprivation of liberty, the Court could not accept the Government’s submission that the detention had been intended for educational supervision within the meaning of Article 5 – 1 (d). While sub-paragraph (d) did not preclude an interim custody measure being used as a preliminary to a regime of supervised education, it had to be speedily followed by actual application of a regime of educational supervision in a setting designed and with sufficient resources for that purpose. The applicant had been placed in the temporary detention centre for the purpose of ‘behaviour correction’ and the prevention of delinquent acts. His detention was not an interim custody measure preliminary to his placement in a closed educational institution, or to any other measure involving educational supervision. He had not received regular and systematic educational supervision, such education as he had been offered being purely incidental to the main purpose of preventing further delinquent acts. Accordingly, his detention did not come within sub-paragraph (d).
Nor did it come within sub-paragraphs (b) or (c) of Article 5 – 1 (detention to secure the fulfilment of an obligation prescribed by law or to prevent the commission of an offence). Although the domestic courts had identified the main purpose of the detention as being to prevent the commission of new delinquent acts, neither they nor the Government had identified any concrete and specific acts the applicant had to be prevented from committing. A general duty not to commit a criminal offence in the imminent future was not sufficient for this purpose. Further, as regards Article 5 – 1 (c), the applicant’s detention did not meet the requirement that it should be ‘effected for the purpose of bringing him before the competent legal authority’.
Lastly, since the applicant was not convicted of an offence because he had not reached the statutory age of criminal responsibility, his detention could not be regarded as ‘lawful detention after conviction by a competent court’ within the meaning of Article 5 – 1 (a). Sub-paragraphs (e) and (f) of Article 5 – 1 were clearly not relevant.
The applicant’s detention in the temporary detention centre for minor offenders therefore did not have any legitimate purpose under Article 5 – 1 and was accordingly arbitrary.
Conclusion: violation (unanimously).
Article 6 – 1 in conjunction with Article 6 – 3 (c) and (d)
(a) Applicability – Although the decision to place the applicant in the detention centre was taken in proceedings formally unrelated to the criminal inquiry, there was a close link between the two. Indeed the wording of both the applicable legal provisions and the decision clearly showed that his placement was a direct consequence of the prosecution authorities’ finding that his actions had contained elements of the criminal offence of extortion. The applicant’s thirty-day detention in a detention centre for minor offenders subject to a quasi-penitentiary regime after a finding that his actions contained elements of that offence contained punitive elements as well as elements of prevention and deterrence. Accordingly, the nature of the offence, together with the nature and severity of the penalty, were such that the proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the Convention, which was therefore applicable.
(b) Merits – The applicant had not had an opportunity to contact his family or obtain legal assistance when questioned by the police. Given his young age, the circumstances surrounding the interview had been psychologically coercive and conducive to breaking down any resolve he might have had to remain silent. In addition, he had undoubtedly been affected by the restrictions on his access to a lawyer as his confession obtained without legal assistance had served as a basis for the finding that it was necessary to place him in the temporary detention centre. His defence rights had therefore been irretrievably prejudiced and the fairness of the proceedings had been undermined as a whole.
This was the first time the Court had had an opportunity to examine the special procedures applicable in Russia to minors who had committed a delinquent act before reaching the statutory age of criminal responsibility. Apart from the applicant’s confession obtained without the benefit of legal advice and which was later repudiated, the statements by the neighbour and her son were the only, and thus the decisive, evidence against him. Yet no effort had been made to secure their appearance at court, and there had been no counterbalancing factors to compensate for the applicant’s inability to cross-examine the witnesses.
Accordingly, and as a result of the special legal regime applicable to accused persons under the statutory age of criminal responsibility, the applicant’s defence rights had been restricted to an extent incompatible with Article 6. In particular, the Minors Act afforded legal assistance only from the time the case was transferred to a court, and failed to guarantee such important rights as the rights to cross-examine witnesses, not to incriminate oneself, or to the presumption of innocence. The applicant could not, therefore, be said to have received a fair trial.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage; claim in respect pecuniary damage dismissed.
47152/06 – Chamber Judgment, [2013] ECHR 1132, 47152/06 – Legal Summary, [2013] ECHR 1316
Bailii, Bailii
European Convention on Human Rights 5-1
Human Rights
Updated: 28 November 2021; Ref: scu.519527
