TrustHLT/LaCour huggingface dataset:
GR1 (Government): As the Constitutional Court noted in its decision 20 from 2014, in 1993, saving cooperatives received significant financial support from the state, and this support was made conditional upon membership in an integration organization.
GR1 (Government): Thus, the Integration Act was organic development of the formerly applied integration methods.
GR1 (Government): As regards the capacity of the applicants' banks to file an application before this Court, the government note also in response to the question of Judge Pavli that the integration institutions could not and did not force the applicants' banks to withdraw their application from this Court.
GR1 (Government): For one reason, it would have been a violation of Article 34 of the Convention.
GR1 (Government): Moreover, the applicants' banks did conduct several proceedings against the integration institutions in Hungarian courts.
GR1 (Government): Furthermore, a withdrawal would not have bound the Court if there were any pressure by the government.
GR1 (Government): Insofar as their allegations about the prospective appointment of an integration commissioner decided in 2018, after years of unlawful operation of Kinyarbank can be interpreted as an attempt to prove that the organs established in accordance with the Articles of Association of the banks were not free to act in this field in accordance with the decisions of the shareholders' meeting.
GR1 (Government): The government point out that the decision of 2018, irrespective of the assessment of its content, is irrelevant for the bank's legal capacity in 2014 when the application was filed.
GR1 (Government): Finally, I wish to react to the applicants' reference to a sum of 1.5 million forints quoted from the final audit report
GR1 (Government): prepared before the selling of their portfolio.
GR1 (Government): I may refer to this sum as the loss of the value of the company's shares, whereas it was a hypothetical calculation as to the losses of the integration in case of an eventual liquidation of Kinyarbank.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges who have put questions to ask for further clarification if they so wish.
Linos-Alexandre Sicilianos (JudgeP): Apparently this is not the case.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Armani Da Silva against the United Kingdom.
Dean Spielmann (JudgeP): The application was lodged with the court on the 21st of January 2008 under Article 34 of the Convention by a Brazilian national, Miss Patricia Armani Da Silva.
Dean Spielmann (JudgeP): The application was allocated to the fourth section of the court pursuant to Rule 52, paragraph 1 of the Rules of Court.
Dean Spielmann (JudgeP): The application was communicated to the government on the 28th of September 2010.
Dean Spielmann (JudgeP): On the 14th of February 2011, the president of the court granted leave to the Equality and Human Rights Commission to submit written comments as a third party by virtue of Rule 44, paragraph 3 of the Rules of Court.
Dean Spielmann (JudgeP): On the 9th of December 2014, the chamber decided to relinquish jurisdiction in favor of the Grand Chamber.
Dean Spielmann (JudgeP): The United Kingdom government are represented by their agent, Mr. Paul McKell, assisted by Miss Clare Montgomery, QC
Dean Spielmann (JudgeP): counsel, and by Mr. John Edwards, advisor.
Dean Spielmann (JudgeP): The applicant is represented by Mr. Hugh Southey, QC,
Dean Spielmann (JudgeP): and Miss Henrietta Hill, QC, counsel.
Dean Spielmann (JudgeP): They are assisted by Mr. Adam Straw, Miss Harriet Wistrich,
Dean Spielmann (JudgeP): and Miss Marcia Willis Stewart, advisors.
Dean Spielmann (JudgeP): Members of the applicant's family and support group are also present.
Dean Spielmann (JudgeP): In addition, I would like to welcome the delegation led by the Attorney General for Northern Ireland, the judges and prosecutors from Turkey, and the delegation of magistrates from Spain.
Dean Spielmann (JudgeP): I also welcome the visiting groups of lawyers, including the Scottish Faculty of Advocates.
Dean Spielmann (JudgeP): Miss Montgomery for the government will speak first, and then Mr. Southey for the applicant.
Dean Spielmann (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting to Turkish has been authorized for the benefit of a delegation of judges and prosecutors from Turkey attending this hearing.
Dean Spielmann (JudgeP): I call Miss Montgomery.
GR1 (Government): Mr. President, members of the court, on 22nd of July, 2005,
GR1 (Government): an innocent man was shot dead by the police on his way to work in London.
GR1 (Government): His death was the result of a series of serious operational failures by the Metropolitan Police.
GR1 (Government): There is no doubt that his death could and should have been prevented.
GR1 (Government): The fight against terrorism is one in which all members of the Council of Europe are involved and is every bit as pressing today as it was in 2005.
GR1 (Government): But no innocent person should lose his or her life in the course of that fight.
GR1 (Government): The job of the police that day was to protect the lives of all members of the public in London.
GR1 (Government): But they failed Mr. de Menezes and, in turn, his family.
GR1 (Government): In presenting the United Kingdom submissions to you today, it's important to start by acknowledging, on behalf of the government, the terrible facts of the case.
GR1 (Government): The United Kingdom does not seek to evade responsibility for Mr. de Menezes' death.
GR1 (Government): He was killed by agents of the state for whom the government was responsible.
GR1 (Government): That responsibility has been publicly acknowledged, including through a payment of compensation to his family in settlement of a civil claim, which included a claim for the breach of Article 2, although we do not, for a moment, seek to suggest that such payment could ever begin to compensate the loss which they have suffered.
GR1 (Government): It's also important to start by defining what the case is and is not about.
GR1 (Government): It is not a case about the operational part of Article 2.
GR1 (Government): The applicant does not raise an Article 2 claim in respect to the police.
GR1 (Government): Her Article 2 claim against them, arising out of their conduct of the operation, has been resolved domestically.
GR1 (Government): Rather, she alleges a breach of the investigative part of Article 2, flowing from the actions of the Crown Prosecution Service, the CPS, in not prosecuting the individual police officers who killed her cousin, and the structure of the English law of self-defense.
GR1 (Government): It may be helpful to begin by recalling the steps which the United Kingdom took in the case in order to fulfill its Article 2 investigative obligation.
GR1 (Government): The death was investigated, in the first instance, by the Independent Police Complaints Commission, the IPCC.
GR1 (Government): This is an independent statutory body with its own staff and investigative powers, which is responsible, amongst other things, for investigating deaths involving the police.
GR1 (Government): The IPCC gathered and analyzed the evidence and produced two detailed reports.
GR1 (Government): And as the domestic courts have recently emphasized in a case involving the West Yorkshire police, their job is not to decide whether any police officer should face criminal charges or disciplinary charges, but to recommend potential charges for consideration by the CPS, or disciplinary charges for consideration by the police.
GR1 (Government): The IPCC made a number of recommendations.
GR1 (Government): The case was then reviewed by the CPS.
GR1 (Government): In very brief summary, the CPS was set up in 1985 in order to take charging decisions and to conduct criminal prosecutions in a way that is robustly independent from the police and any other state agency.
GR1 (Government): Before that, the police themselves did the task.
GR1 (Government): But since then, 1985, it was considered they did not provide sufficient independence, and the CPS are designed to secure independent oversight.
GR1 (Government): In this case, the decision was taken by an independent Crown prosecutor on advice from independent counsel after scrutiny of the evidence.
GR1 (Government): And the reasoning was set out in a detailed note.
GR1 (Government): Which brings me to the first complaint, which is that the process of dealing with the criminal charges was inconsistent with Article II.
GR1 (Government): There's no doubt that the prosecutorial decisions in this case were independent from any other part of the state.
GR1 (Government): But the complaint is that the CPS made the decision without having the power to test the oral evidence of the witnesses before taking their charging decision, or alternatively, that the decision should have been more intensively reviewed by a court.
GR1 (Government): The government make two points about this.
GR1 (Government): First, there's nothing in the convention to indicate that charging decisions must be taken by a court rather than an independent prosecuting body.
GR1 (Government): One important feature of this case, to which I'll return, is the fact that criminal justice systems vary widely throughout the Council of Europe.
GR1 (Government): Recognizing that diversity of legal tradition and respecting the fact that the convention must be a living instrument for states with differing legal institutions and traditions, the court has repeatedly refrained from dictating the manner in which offenses should be investigated or prosecuted, and from dictating substantive content of criminal laws or procedures.
GR1 (Government): The key requirement is that decisions on prosecution are taken by an independent, impartial decision maker following a thorough analysis of the evidence.
GR1 (Government): That does not dictate a particular form of procedure, and certainly does not dictate that the prosecution authorities must hear oral testimony of witnesses before taking a decision.
GR1 (Government): In the United Kingdom, as in other common law jurisdictions, such decisions are taken by an independent prosecutor on review of the papers.
GR1 (Government): In the case of a police killing, it must also be recalled that the CPS also have the benefit of the materials generated by the IPCC during its investigation, including transcripts of interviews that they have held with key witnesses and potential defendants.
GR1 (Government): Such a system, we submit, meets the requirement of Article II.
GR1 (Government): And the decisions by the CPS are also subject to review by the courts.
GR1 (Government): The applicant argues that such reviews are not intensive enough, but as the government has explained in its observations, the courts have applied particular scrutiny to such matters, well aware of the importance of judicial review as a remedy for a potential victim whose case is not being prosecuted.
GR1 (Government): And the courts will intervene where a decision not to prosecute is based on an error of law or is otherwise irrational or procedurally flawed.
GR1 (Government): This is a significant additional safeguard for victims of potential crime on top of the thorough and independent process conducted by the CPS.
GR1 (Government): In addition, since the decision in this case, the CPS have introduced a procedure entitled the Victims' Right to Review.
GR1 (Government): That gives effect to a decision in the English Court of Appeal and Article 11 of the EU Directive on the Rights, Support, and Protection of Victims of Crime.
GR1 (Government): This now allows victims of crime in cases where the CPS have decided not to bring charges or to discontinue or withdraw prosecutions to seek a review of that decision.
GR1 (Government): The review's first conducted by a local CPS office that made the original decision, and then the victim has the opportunity to seek an independent review from the CPS Appeals and Review Unit.
GR1 (Government): This provides an important additional safeguard in cases where allegations of criminal conduct have not led to prosecution.
GR1 (Government): Secondly, and most importantly, the applicant's argument must fail on the facts of this case.
GR1 (Government): In order to explain why, I must draw your attention to some more of the facts.
GR1 (Government): After the criminal proceedings had concluded, a lengthy inquest took place before a coroner, a high court judge, and a jury.
GR1 (Government): As the court will be aware in previous cases, in England and Wales, an inquest takes place in every case where a person has died a sudden or violent death.
GR1 (Government): The inquest in this case involved hearing oral evidence from every witness who could have had any relevance to a criminal prosecution, including every individual officer whom the applicant says should have been prosecuted.
GR1 (Government): At the end of the inquest, after reviewing the evidence and hearing detailed legal argument, the judge ruled that the verdict of unlawful killing should not be left to the jury.
GR1 (Government): The elements of that inquest verdict of unlawful killing are precisely the same as the elements of the crimes which the CPS had to consider in taking their decision on the criminal charges.
GR1 (Government): The judge's decision means that having heard all the witnesses cross-examined at length, he considered the evidence did not meet even the low standard for leaving the verdict to the jury.
GR1 (Government): I'll discuss the standard later when considering the applicant's other point.
GR1 (Government): But in the light of that decision, there is no prospect of a judge ruling that the evidence met the higher standard which applies when deciding whether to bring criminal charges.
GR1 (Government): The judge's ruling demonstrates conclusively that even if the decision on criminal charges had been taken by a judge and not the CPS after hearing oral evidence, the officers who killed Mr. de Menezes would not have been prosecuted.
GR1 (Government): The applicant's preferred process of decision-making could not have made any difference to the outcome.
GR1 (Government): The CPS also re-reviews a range of cases after the conclusion of any inquest.
GR1 (Government): These are where there's a verdict of unlawful killing or a narrative verdict, or where this coroner refers the case to the CPS, whether or not the CPS had previously considered it.
GR1 (Government): Any re-review assesses whether the initial charging decision should be altered in the light of the evidence which emerged during the inquest hearing.
GR1 (Government): Sometimes the review leads to a decision to bring charges where none had been previously contemplated.
GR1 (Government): This was the case recently in the case of the death of Mr. Ian Tomlinson, a man killed
GR1 (Government): by a police officer during demonstrations against the G20 meeting of governments in the City of London.
GR1 (Government): Before the inquest, the CPS took the view that the medical evidence did not link the death to the actions of the police.
GR1 (Government): However, after the inquest clarified the evidence and the jury returned a verdict of unlawful killing, the CPS reviewed the decision not to charge, and a police officer was prosecuted for manslaughter.
GR1 (Government): Other cases where the CPS has reversed the initial decision include the death of Jimmy Mbenga, who died following restraint by private security contractors while being deported, and Azelle Rodney, who was shot dead by police during an armed operation.
GR1 (Government): The CPS carried out such a review in this case.
GR1 (Government): So it's simply not right to say that decisions are taken by the CPS without the benefit of hearing the witnesses.
GR1 (Government): In a case where a person has been killed by state agents in the United Kingdom, the CPS's decision on criminal charges will be thoroughly reviewed after the inquest, in which the key witnesses have given oral evidence.
GR1 (Government): And in appropriate cases, the CPS will bring charges after an inquest where it had not previously thought that they were justified.
GR1 (Government): So the judge's ruling in the present case powerfully demonstrates why the CPS maintains its position in this case following its re-review.
GR1 (Government): Nothing happened at the inquest to change the position.
GR1 (Government): So even if the CPS had interviewed the witnesses itself, as the applicant suggests, they would have reached no different result.
GR1 (Government): The CPS can conduct interviews prior to a charging decision, but such interviews are no substitute for the testing of evidence in the courtroom, such as occurs in an inquest when the family are able to participate.
GR1 (Government): That brings me to the criminal trial, which did take place in October 2007.
GR1 (Government): In examining the reasons why the CPS decided not to bring certain charges, it's important to bear in mind that another very serious criminal charge was, in fact, brought.
GR1 (Government): At the same time as deciding no individuals should be prosecuted, the CPS was highly critical of the overall conduct of the Metropolitan Police.
GR1 (Government): It decided to prosecute the police force as a whole through the office of the Commissioner of the Police of the Metropolis for an offence under section 3 of the Health and Safety at Work Act, which imposes the duty on every employer to conduct his undertaking in such a way as to ensure, as far as reasonably practicable, that no person not in his employment who may be affected thereby is exposed to risk to their health and safety.
GR1 (Government): Although it is enough for the prosecution to prove that members of the public were exposed to the mere possibility of danger, the danger identified in this criminal case was the risk of death and serious injury arising from the armed police operation.
GR1 (Government): The death of Mr. de Menezes was relied upon
GR1 (Government): as proving the fact that both danger and harm had resulted from the police failures.
GR1 (Government): It was the planning and conduct of the police operation that was under scrutiny in the trial.
GR1 (Government): And after a four-week criminal trial, the jury returned a guilty verdict, adding a right as their verdict to record that Detective Chief Superintendent Commander Dick bore no personal culpability for the events.
GR1 (Government): Now, the applicant complains that that prosecution was inadequate because it did not involve the prosecution of individuals.
GR1 (Government): But imagine the position if the two officers who fired the fatal shots had been prosecuted, but no other prosecution had been brought.
GR1 (Government): The applicant would then correctly argue that prosecuting the officers at the lowest end of the chain of command did not address the real failures of others higher up the chain.
GR1 (Government): Of course, each case turns on its own facts.
GR1 (Government): And in some cases, the appropriate defendant will be an individual officer or officers.
GR1 (Government): But in the present case, the government submits it would not have addressed the key issues in the case.
GR1 (Government): These issues of planning and execution were directly addressed in the criminal trial.
GR1 (Government): There is no reason under Article 2 why a prosecution, if appropriate, must be of individuals alone.
GR1 (Government): Indeed, there are many cases, and this is one of them, where prosecuting the last person in the chain of command would be utterly inadequate as a means of allocating criminal responsibility.
GR1 (Government): Mr. de Menezes' death arose in the course
GR1 (Government): of a complex police operation.
GR1 (Government): The officers who killed him were the last in a long chain of command.
GR1 (Government): The IPCC and the CPS identified serious failures at many levels of the operation, from the top downwards.
GR1 (Government): Yet the officer who conducted an unbalanced briefing for the firearms officers didn't cause his death.
GR1 (Government): The surveillance team, who did not stop Mr. de Menezes when he could be safely stopped,
GR1 (Government): did not cause his death.
GR1 (Government): The officer who failed to communicate his view, that Mr. de Menezes was not a suspect in the bombings
GR1 (Government): the day before, did not cause his death.
GR1 (Government): On any view, none of those acts or omissions could be said to be murder or manslaughter.
GR1 (Government): Yet all those failures added up.
GR1 (Government): They added up to a situation where the firearms officers who followed Mr. de Menezes into the carriage of the underground
GR1 (Government): train thought they were dealing with a suicide bomber.
GR1 (Government): The fact that they had that wrong belief and they ended up tackling him on a train crowded with commuters, in which if he had been a suicide bomber, shooting him dead would have been the only way to protect the lives of others around him, those two critical facts are the result of a series of errors earlier in the police operation.
GR1 (Government): In those circumstances, far from being apologetic about the decision to prosecute the Metropolitan Police, the government submits that that was the right thing to do.
GR1 (Government): The corporate charge captured the failings that led to this avoidable death.
GR1 (Government): It ensured that every link in the chain was subject to public scrutiny and eventually a criminal penalty.
GR1 (Government): The guilty verdict marked the jury's, and through them society's, condemnation of every aspect of this failed operation.
GR1 (Government): The term health and safety can be trivialised when contrasted with offences of murder, but the court must look at the substance of what it was prosecuted, not the label that is applied.
GR1 (Government): The criminal prosecution in this case was unprecedented.
GR1 (Government): Charge had never been used in connection with the death of a civilian in a police shooting before.
GR1 (Government): In addition, the criminal offence did not need to cite Article 2 in order to comply with it.
GR1 (Government): Although the wording of the offence does not specify a risk to life, in this case the focus of the trial was not merely on the creation of abstract risk.
GR1 (Government): The fact of the death was the central focus of the case.
GR1 (Government): The trial examined minutely the events which led up to it and held the police criminally responsible for it.
GR1 (Government): That's what Article 2 requires we submit.
GR1 (Government): The applicant's next complaint is the CPS applied too high an evidential threshold in deciding whether to prosecute.
GR1 (Government): As you've seen from the party's submissions, the CPS has to decide whether on the evidence before it there is a realistic prospect of conviction.
GR1 (Government): It's very important to start with an appreciation of what that means in practice, because the applicant and the intervener have mischaracterized the test.
GR1 (Government): They repeatedly describe it in mathematical terms.
GR1 (Government): They say it's a 51% rule that you prosecute if it's 51% in chance of conviction, and you don't if it's 49%.
GR1 (Government): But expressing the test in that way serves only to trivialize it and make it appear arbitrary.
GR1 (Government): As the CPS made clear in guidance issued as long ago as 1994, the CPS has always stated that weighing evidence and the public interest is not a precise science.
GR1 (Government): It's therefore misleading to talk in terms of percentages, particularly to a single percentage point, because it implies that we can give individual pieces of evidence an exact weight and then add them up to reach a decision about prosecution.
GR1 (Government): Crown prosecutors should continue to avoid using any expressions which could convey the impression that the decision-making process is susceptible to very precise numerical definition.