ITEMID: 001-59686
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HATTON AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Brian Kerr;Nicolas Bratza
TEXT: 9. The noise levels experienced by each applicant, and the effect on each of them individually, are as follows:
10. Ruth Hatton was born in 1963 and, until 1997, lived in East Sheen with her husband and two children. From 1993, when the level of night noise increased, Mrs Hatton found the noise levels to be “intolerable” at night. The noise levels were greater when aircraft are landing at Heathrow from the east. When this happened, Mrs Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Mrs Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Mrs Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Mrs Hatton’s children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Mrs Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, Mrs Hatton moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night.
11. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated approximately 4 km from Heathrow airport and slightly to the north of the southern flight path. In about 1993, the level of disturbance at night from aircraft noise increased notably, and Mr Thake began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep. Mr Thake found it difficult to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on 19 occasions. Mr Thake remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area. Mr Thake moved to Winchester, Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”.
12. John Hartley was born in 1948 and lives in Richmond with his wife. He has lived at his present address since 1989. His house is about 8 miles (13 km) from Heathrow airport, and is situated almost directly under the approach to the airport’s southern runway. The windows of the house are double-glazed. From 1993, Mr Hartley noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). The British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than midnight. He would then find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep.
13. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. Ms Edmund’s house is approximately one kilometre from the Heathrow flight path. Before 1993, Ms Edmunds was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. Ms Edmunds suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night, and although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds’s children both suffered from disturbance by aircraft noise.
14. John Cavalla was born in 1925. From 1970 to 1996, he lived in Isleworth. Mr Cavalla lives with his wife. Mr Cavalla’s house in Isleworth was directly under the flight path of the northern runway at Heathrow airport. In the early 1990s, the noise climate deteriorated markedly, partly as a result of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla noticed that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. Mr Cavalla found that, once woken by an aircraft arriving at Heathrow airport in the early morning, he was unable to go back to sleep. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, Mr Cavalla was only very rarely exposed to any night-time aircraft noise following his move.
15. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. Mr Thomas has lived at his present address since 1975. His house lies between the north and south Heathrow flight paths. Aircraft pass overhead on seven or eight days out of every ten, when the prevailing wind is from the west. Mr Thomas noticed a sudden increase in night disturbance in 1993. Mr Thomas would find that he was awoken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half an hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m.
16. Richard Bird was born in 1933 and lived in Windsor for 30 years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow airport. In recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. and 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998, and he and his wife moved to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”.
17. Tony Anderson was born in 1932 and lives in Touchen End, which is under the approach to runway 09L at Heathrow airport, and approximately 9 or 10 nautical miles from the runway. Mr Anderson has lived in Touchen End since 1963. By 1994, Mr Anderson began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow airport.
18. Heathrow airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom’s leading port in terms of visible trade.
19. Restrictions on night flights at Heathrow airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998.
20. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority.
21. A Consultation Paper was published by the United Kingdom Government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided Leq were not increased (dBA Leq metric is a measurement of noise exposure).
22. It indicated that there were two reasons for not considering a ban on night flights: first, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow airport as a 24-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports.
23. From 1988 to 1993, night flying was regulated solely by means of a limitation upon the number of take-offs and landings permitted at night. The hours of restriction were as follows:
Summer 11.30 p.m. to 6 a.m. weekdays
11.30 p.m. to 6 a.m. Sunday landings
11.30 p.m. to 8 a.m. Sunday take-offs
Winter 11.30 p.m. to 6.30 a.m. weekdays
11.30 p.m. to 8 a.m. Sunday take-offs and landings
24. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance.
25. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester airports. The findings were published in December 1992 as the “Report of a Field Study of Aircraft Noise and Sleep Disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about 18 nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft noise movements would cause very little increase in the average person’s nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average.
26. In January 1993, the Government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. In considering the demand for night flights, the Consultation Paper made reference to the fact that if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements.
27. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price sensitive market.
28. Further, the Consultation Paper stated that both scheduled and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings.
It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended upon high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and which could only be fitted in using movements at night.
29. Finally, in reference to the demand for night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and referred to the fact that all-cargo movements are banned, whether arriving or departing, for much of the day at Heathrow airport.
30. The Consultation Paper referred to the 1992 sleep study stating that the 1992 sleep study found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people’s health or well-being.
31. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to improve it, it was proposed that the quota for the next five years based on the new system should be set at a level so as to keep overall noise levels below those in 1988.
32. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association [“IATA”], the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses.
33. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”).
34. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Heathrow airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement.
35. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (8 QC – quota count – or 16 QC) or to land (16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter).
36. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the Government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper.
37. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State’s decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 70-73 below) In consequence of the various judgments delivered by the High Court and Court of Appeal, the Government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions [formerly the Department of Transport; “the DETR”]) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995, and issued a supplement to the March 1995 Consultation Paper in June 1995.
38. The June 1995 supplement stated that the Secretary of State’s policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to Government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the Government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 a.m. and 5.30 a.m.
39. On 16 August 1995, the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people’s ability to sleep at nights because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational. On 12 November 1996, the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.
40. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks change from GMT to BST). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period.
41. In September 1995, a trial was initiated at Heathrow airport of modified procedures for early morning landings (those between 4 a.m. and 6.00 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of Revised Heathrow Early Mornings Approach Procedures Trial”, was published in November 1998.
42. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published in December 1997. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”.
43. In 1998, the Government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted airports. In February 1998, a preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper.
44. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom’s most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success.
45. The Government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation.
46. The British Air Transport Association (“BATA”) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about £850 million. BATA submitted the report to the Government when it responded to the Preliminary Consultation Paper.
47. On 10 September 1998, the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998.
48. In November 1998, the Government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive Governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that ‘interference with sleep’ was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full scale study of either sleep prevention or total sleep loss.
49. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss.
50. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they are of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and to update the arrangements as appropriate.
51. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m.
52. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region.
53. The Consultation Paper indicated that the Government had not attempted to quantify the aviation and economic benefits of night flights in monetary terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which was commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long haul scheduled night flight at Heathrow to be £20m to £30m per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA’s figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts.
54. The Consultation Paper stated that, in formulating their proposals, the Government had taken into account both BATA’s figures and the fact that it was not possible for the Government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in monetary terms, but it was possible, drawing on the 1992 sleep study, to estimate the numbers of people likely to be awakened. The Consultation Paper concluded that in forming its proposals, the Government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night; that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the Government’s view, would protect local people from excessive aircraft noise at night.
55. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant reclassifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of Chapter 2 civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16 and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (i.e. after completion of the compulsory Chapter 2 phase out).
56. The Consultation Paper stated that since the introduction of the 1993 scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review.
57. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow’s runways at night.
58. On 10 June 1999, the Government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99.
59. The 1999 Scheme came into effect on 31 October 1999.
60. On 10 November 1999, a report was published on “The Contribution of the Aviation Industry to the UK Economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the Government.
61. On 23 November 1999, the Government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further consultation paper concerning proposals for changes to the preferential use of Heathrow’s runways at night.
62. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR.
63. In March 2000, DORA published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers.
64. A series of noise mitigation and abatement measures is in place at Heathrow airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise related airport charges; noise insulation grant schemes and compensation for noise nuisance under the Land Compensation Act 1973.
65. The DETR and the management of Heathrow airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas within the vicinity of Heathrow airport, and local residents’ associations are represented.
66. Section 76 (1) of the 1982 Act provides, so far as relevant:
67. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance.
68. Section 78 (3) of the 1982 Act provides, so far as relevant:
“If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say–
(a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified;
(b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified; ....”
69. Restrictions on night flights at Heathrow airport are imposed by means of notices published by the Secretary of State under section 78 (3) of the 1982 Act.
70. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State’s decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78 (3) (b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports, p. 74).
71. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78 (3) (b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow airport would permit an increase in noise levels over those experienced in 1988 (R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports, p. 390).
72. Following the publication of a further consultation paper in March 1995, and of a supplement to the March 1995 consultation paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people’s ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports, p. 1460).
73. On 12 November 1996, the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-105531
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHISHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;No violation of Art. 3;Violation of Art. 6-3-c;Violation of Art. 6-1
JUDGES: Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1963 and lives in Lipetsk.
6. In November 2000 the authorities opened criminal proceedings against the applicant in respect of three incidents of robbery and theft committed in the Lipetsk and Tambov regions.
7. On 17 January 2001 separate criminal proceedings were instituted against the applicant on suspicion of his involvement in the manslaughter of police officer A. and the robbery of M.
8. On 23 January 2001 the applicant was arrested and escorted to the Interior Department of the Lipetsk Region. According to him, he was not provided with an explanation of the reason for his arrest, nor was he allowed to inform his family or counsel about it.
9. In the evening of the same day the applicant was transferred to Dolgorukovskoe police station of the Lipetsk Region. He again unsuccessfully requested that he be allowed to inform his family and counsel. He was apprised that he was suspected of the manslaughter of A. and robbery of M.
10. The applicant denied involvement in the above crimes, whereupon he was severely beaten by Mr Abakumov (the head of the Investigations department), Mr Kondratov, Mr Trubitsyn, Mr Lukin (the head of the public safety department) and Mr Gerasimov (the chief of the police station) who punched and kicked him on various parts of the body. At the same time Mr Kavyrshin encouraged the officers to continue the attack, and Mr Trubitsyn was hitting the applicant on the soles of the feet with a rubber truncheon. Mr Trubitsyn and Mr Kondratov suspended the applicant several times in the air by his arms tied behind his back. Mr Abakumov, Mr Kondratov, Mr Trubitsyn, Mr Butsan (a deputy chief of the police station), Mr Lukin, Mr Gerasimov and Mr Kavyrshin also forced the applicant to wear a gas mask whose air vent was occasionally blocked off.
11. Until 5 February 2001 the applicant was subjected to similar treatment by the same police officers on a daily basis. In addition, they threatened to take the applicant’s life by placing a loaded pistol in his mouth, left him for lengthy periods of time wrapped in several mattresses with his legs tied together and his hands cuffed behind his back, forced him to wear a smoke-filled gas mask with a blocked air vent and administered electric shocks to various parts of his body through wires connected to a dynamo.
12. On an unspecified date the applicant confessed to the manslaughter of A. and robbery of M. On 23 and 27 January 2001 he also waived his right to counsel. According to the applicant, the waiver was the result of coercion by the police officers.
13. The investigator of the prosecutor’s office of the Lipetsk Region Mr Ibiyev was in charge of investigation of the manslaughter of A. and the robbery of M.
14. On 30 January 2001 the applicant’s relatives retained counsel Sh. who tried unsuccessfully to see the applicant on 30 and 31 January 2001.
15. The applicant was first allowed access to counsel on 2 February 2001.
16. On 7 February 2001 a forensic medical examination of the applicant recorded a bruise on his left shoulder, which might have been inflicted about two weeks prior to the examination.
17. On 13 and 19 February 2001 respectively the applicant complained to the prosecutor of the Lipetsk Region and his counsel that he had been illtreated from 23 January to 5 February and from 9 to 13 February 2001 at Dolgorukovskoe police station, with the knowledge of the investigator Mr Ibiyev. He wrote that under the duress he had confessed to involvement in the robbery of M. and manslaughter of A. and had slandered his cosuspects.
18. On 26 May 2001 the criminal proceedings against the applicant for manslaughter and robbery were terminated, following the discovery of other suspects, who were later convicted by a court.
19. On 14 March 2001 the applicant requested the prosecutor’s office of Yelets to institute criminal proceedings against the aforementioned police officers for ill-treatment.
20. On 6 July and 14 September 2001 the prosecutor’s office rejected the applicant’s request, finding no evidence that an offence had been committed. The decisions contained, in particular, the results of expert medical examinations and statements obtained from several police officers. These decisions were reversed by the prosecutor’s office of the Lipetsk Region on 7 August and 11 October 2001 respectively, on the ground that the inquiry had been incomplete.
21. On 11 October 2001 the prosecutor’s office of the Lipetsk Region opened criminal proceedings against the alleged offenders. The applicant was granted victim status.
22. Between November 2001 and August 2002 the investigator again questioned the police officers, the applicant and his former cellmates and held confrontations between the police and the applicant.
23. In reply to the applicant’s complaints about delays in the investigation, on 12 April 2002 the office of the Prosecutor General ordered that the investigation be sped up.
24. On 11 August 2002 the criminal proceedings were again terminated on the grounds that there was insufficient evidence that the offence had been committed.
25. By a letter of 18 October 2002 the office of the Prosecutor General reprimanded the lower office for the discrepancies between the facts of the case and the conclusions reached by the investigator, and for attempts to cover up the violence committed by the police against the applicant.
26. On 10 November 2002 the prosecutor’s office of the Lipetsk Region quashed the decision of 11 August 2002. The proceedings were resumed.
27. On 16 May 2003 the police officers of Dolgorukovskoe police station, namely Mr Abakumov, Mr Kondratov, Mr Trubitsyn and Mr Lukin, were charged with abuse of authority associated with the use of violence and weapons and entailing serious consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code.
28. By a letter of 12 February 2004 the office of the Prosecutor General again reprimanded the lower office for poor quality and excessive length of the investigation. It pointed out, in particular, that not all the suspects had been charged and that the charges had been drawn up with certain procedural irregularities. It was suggested that the lower office resume the investigation with a different investigating group.
29. On 29 and 30 April, 5 May 2004 ten police officers were charged with actions committed in abuse of authority and in violation of the citizens’ rights, involving the use of violence and weapons and entailing grave consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code of Russia.
30. On 20 December 2004 the criminal case against the police officers of Dolgorukovskoe police station was set down for trial before the Yelets Town Court, Lipetsk Region.
31. On 28 December 2007 the Yelets Town Court found the policemen guilty as charged. The court found, inter alia, that the applicant had been illtreated in the circumstances described above (see paragraphs 10 and 11 above) as a suspect in the manslaughter of A. and the robbery of M. It detailed further that
“unlawful methods were used to revenge A.’s death as well as with a view to coercion of the suspects to confess in the aforementioned crimes, to confirm them and to waive legal assistance”.
32. The court sentenced the defendants to terms of imprisonment ranging from four years to five years and eight months, with a subsequent three-year prohibition on serving in law-enforcement agencies.
33. The court also recognised the applicant’s right to compensation in separate civil proceedings.
34. On 2 June 2008 the Lipetsk Regional Court upheld the conviction on appeal but decided to commute the sentences and eliminate the prohibition on holding certain offices. The court noted that some of the defendants had been awarded medals for excellent police service and that all of them had positive references from their superiors. It therefore considered that it was possible to give them sentences below the statutory minimum. It sentenced six defendants to imprisonment ranging from two years and six months to three years and three months. The remaining four defendants were sentenced to imprisonment ranging from one year and six months to two years and six months, but their sentences were suspended and they were placed on probation for two years. Those four defendants were immediately released.
35. On an unspecified date the applicant sued the Ministry of Finance, the Interior Ministry and Dolgorukovskoe police station for compensation in respect of non-pecuniary damage caused by the ill-treatment. He claimed 50,000,000 Russian roubles (RUB).
36. On 14 May 2009 the Moscow Zamoskvoretskiy District Court allowed the claim in part. It found that the applicant had been subjected to physical and psychological violence and awarded him RUB 100,000 (about 2,300 euros (EUR)) as compensation.
37. On an unspecified date the Moscow City Court upheld the judgment on appeal.
38. On an unspecified date the remaining criminal charges against the applicant were submitted to the Lipetsk Regional Court for examination on the merits.
39. On 27 June 2002 the applicant and other defendants were escorted to the Lipetsk Regional Court for a hearing. According to the applicant, he and other defendants decided not to go into the courtroom, in protest against the postponement of the hearing and lack of medical assistance to some of the defendants. The presiding judge ordered that they be brought in by force.
40. In a report drawn up on the same day the head of the escorts group described the subsequent events in the following way:
“After a discussion the accused agreed to proceed to the courtroom. While being escorted they attacked the escorting police officers. Physical force and special means were used against them in order to stop the assault and break their resistance.”
41. On 15 July 2002 the prosecutor’s office of the Sovetskiy District of Lipetsk refused the request of the relatives of the accused for institution of criminal proceedings against the police officers who had escorted and beaten the accused. The decision contained the statements of the relatives who had been eyewitnesses to the events in part, the applicant’s version of the events and the statements of the escorts.
42. Five eyewitnesses submitted that at a certain moment they had heard a noise from the staircase leading from the basement and had soon seen the accused being driven up the stairs with blows from the escort officers’ truncheons. The applicant’s mother went on to describe the officer who was beating the applicant and added that innumerable blows had been delivered by the officer, who had used his hands, feet and the truncheon.
43. The applicant’s version of the events read as follows:
“[The accused] agreed to enter the courtroom under the condition that they would be allowed to see their family members in the lobby... [They] started going up the stairs, but seeing that not all of their families were in the lobby they turned back. [The applicant] was handcuffed to his co-accused B. Then the escorts started pushing them into the courtroom. He does not know who was beating him...After the incident he had bruises on his body”.
44. The statement by the head of the escort group was similar to the report drawn up by him on the day of the incident. In addition, he specified that
“[w]hile going up the stairs, the accused P. bolted to the right and the rest attacked the escorting officers.”
45. The escorts made similar statements. The presiding judge refused to testify.
46. The decision not to institute criminal proceedings found it established that the escorts had acted on the judge’s order to bring the accused in by force and had not overstepped the lawful boundaries. It also mentioned that the accused had not requested medical assistance or forensic expert examination and therefore it could not be established whether they had sustained any physical harm.
47. On an unspecified date the applicant challenged in court the decision not to institute criminal proceedings.
48. On 20 September 2004 the Lipetsk Sovetskiy District Court heard the applicant, who testified that the escorts had beaten him without any defiance or resistance on his part. Having examined the decision not to institute the proceedings and the escorts’ reports, the court found that the impugned decision was well-grounded and disallowed the complaint.
49. On 19 October 2004 the Lipetsk Regional Court upheld the decision on appeal.
50. The Government submitted that the materials of the investigation had been studied by the office of the Prosecutor General, which had returned them to the regional office on 22 January 2007 without any comments.
51. As transpires from the text of the trial judgment (see paragraph 56 below), on 4 April 2001 the applicant was questioned as an accused within the investigation opened on account of three incidents of robbery and theft committed in the Lipetsk and Tambov Regions (see paragraph 6 above). The parties did not submit the records of the interviews given by the applicant either before or after that date.
52. In October 2001 the criminal case against him was set down for trial.
53. The applicant pleaded not guilty at the trial and contended that his testimony in relation to the crimes he was being charged with had been obtained under duress at Dolgorukovskoe police station as well as under pressure from other police officers. He emphasised that he had been illtreated at the police station in connection not only with the manslaughter of A. but also with the other charges pending against him. He also asserted that the waivers of legal assistance had been signed by him against his will and that the waiver of 31 January 2001 had been forged by the investigator. His legal counsel had not been informed by the investigator of the investigative actions.
54. On 28 April 2003 the Lipetsk Regional Court found the applicant guilty of assault, aiding and abetting attempted robbery, and theft, and sentenced him to six years’ imprisonment. Three of his co-defendants were also found guilty and sentenced to various terms of imprisonment.
55. In determining the criminal charges against the applicant and his codefendants the trial court relied on the statements made by them during the pre-trial investigation, the circumstantial evidence supplied by the victims, the statements of one of the police officers who had questioned the co-accused during the pre-trial investigation, the records of crime scene reconstructions and expert examinations of several items, which had not ruled out the possibility that the physiological evidence found on them belonged to the applicant or his co-defendants.
56. The trial court rejected the records of interviews given by the applicant as a suspect before 4 April 2001 in respect of the second incident as obtained in violation of the procedural norms, namely without a previous imposition of a measure of restraint on the suspect. It also did not rely in its assessment of evidence on any statements made by the applicant in respect of the first and third incidents.
57. In respect of the applicant’s claim that the statements made during the pre-trial investigation were false and had been given under duress, the court stated:
“... The court cannot agree with the[se] arguments ... as the case materials do not contain any objective information on this account ... They are also refuted by the evidence examined in the proceedings and by the fact that the confessions contained such information as could only be known to the perpetrators of the crime.
[The applicant] made his pre-trial statements of his own will and by his own initiative; [he] had been explained the provisions of Article 51 of the Constitution including his right not to testify against himself ...”
58. As to the alleged lack of legal assistance at the stage of the initial investigation, the trial court found that counsel had been retained to provide assistance in respect of the investigation of the manslaughter of A., but not in respect of the rest of the charges.
59. In his appeal to the Supreme Court of Russia the applicant’s legal counsel challenged the judgment on a number of points. He challenged the court’s analysis of the witnesses’ statements and other evidence, maintained that part of the evidence was inadmissible for procedural flaws, lack of legal assistance during the investigation or due to the coercion applied by the police officers.
60. On 26 November 2003 the Supreme Court rejected the appeal and upheld the judgment.
61. The applicant was held in Yelets T-2 prison from 5 February to 13 June 2001. He was also held in Yelets IZ-48/1 detention facility from 13 June 2001 to 27 December 2003 and from 24 February to 29 April 2004. After the conviction he served his sentence in Yelets correctional colony IK-3 from 27 December 2003 to 24 February 2004 and from 29 April to 5 May 2004.
62. The applicant submitted that in the T-2 and IZ-48/1 detention facilities the cells had been poorly ventilated, their window structures had not allowed access to fresh air, and the lighting had been inadequate. He further submitted that the toilet facilities had not been separated from the living area and that the cells had been infested with rats and mice.
63. As to the conditions of detention in the correctional colony, the applicant alleged in general terms a lack of proper ventilation, lighting and disinfection, as well as deficiencies in the quality and amount of food supplied.
64. On an unspecified date the applicant brought proceedings against the T-2 detention facility, seeking compensation for non-pecuniary damage sustained as a result of the poor conditions of detention. In particular, he complained of stuffiness and unpleasant odour in the cells where he had been kept, lack of proper electric lighting and natural light that had allegedly led to deterioration of his eyesight, poor sanitary maintenance of the cells and breach of the statutory standards of catering for the detainees. He also raised numerous other grievances. On 16 May 2006 the Yelets Town Court of the Lipetsk Region heard the applicant and several witnesses in person, considered witness depositions and the regulations pertaining to the subject, and rejected the complaints as unfounded.
65. It is not clear whether the applicant appealed against the judgment.
66. The Government submitted that the cell windows of the detention facilities which had housed the applicant had never been fitted with metallic sheets or grilles which could have blocked natural light. Instead, the windows were fitted with white-painted venetian blinds which did not inhibit access of daylight to the cells. These blinds were removed from IZ48/1 and T-2 in late 2002 in accordance with the order of the Prisons Department of the Ministry of Justice of 25 November 2002. The cell windows in the correctional colony were fitted in accordance with the standards proscribed by the decree of the Ministry of Justice of 2 June 2003. During daytime the cells of the detention facilities were lit by 40-watt light bulbs whose number was in proportion with the floor area of the cells.
67. The cells in IZ-48/1 and T-2 were equipped with combined extractandinput ventilation in working condition. Such ventilation did not exist in the cells of the correctional colony, as the inmates only slept there. All the detention facilities were naturally ventilated by way of vent lights in the windows.
68. IZ-48/1 and T-2 were equipped with sanitary facilities in working order. The toilets, which were 1.2 to 3 metres from the living area, were fitted with partitions measuring from 1 to 1.8 metres in height, which ensured sufficient privacy. The correctional colony’s quarantine unit and unit 2 had separate sanitary rooms. The cleaning of the sanitary facilities in T-2 and IZ-48/1 was done by the inmates according to the internal regulations. In the correctional colony this cleaning was done twice a day.
69. There were no discoveries of mice, rats or parasitical insects in the concerned detention facilities during the applicant’s period of detention. In T-2 the disinfection and disinfestation took place on a monthly basis, with additional daily inspection of the cells. In IZ-48/1 and the correctional colony such operations were carried out by a staff disinfector in accordance with a set schedule. In addition, all of the concerned facilities disinfested the inmates’ clothes and bedding on a weekly basis.
70. As to the catering, the Government submitted that it had been provided in accordance with the statutory standards.
75. Rubber truncheons may be used in the following cases:
- to repel an attack on a staff member of a detention facility or on other persons;
- to suppress mass disorder or put an end to collective violations of detention rules and regulations;
- to put an end to a refusal to comply with lawful orders of facility administration and warders;
- to release hostages and liberate buildings, rooms and vehicles taken over by a detainee;
- to prevent an escape;
- to prevent a detainee from hurting himself (section 45).
76. Police officers are only entitled to use physical force, special means and firearms in cases and within procedures established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12).
77. Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger that unlawful conduct by a perpetrator may pose and the resistance that the perpetrator offers. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance.
78. By virtue of section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police.
79. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons and handcuffs, and firearms may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting work of transport, means of communication and legal entities. Handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to take arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers.
80. Under Article 47 § 1 of the old CCrP, in force at the material time, counsel could be admitted to proceedings from the moment charges were announced or listed, or, for an arrested or detained suspect, from the moment he or she is given access to the arrest record or detention order. If privately-retained counsel did not appear within twenty-four hours, the authority in charge of the case was allowed to suggest that the person retain other counsel, or to appoint counsel itself (Article 47 § 2).
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-75213
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SANNINO v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Alvina Gyulumyan;John Hedigan;Lucius Caflisch;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1950 and lives in Casoria.
5. On 12 December 1992 the applicant and two others, all of whom were charged with fraudulent bankruptcy, were committed for trial in the Naples District Court. After numerous adjournments on account of failure to serve proper notice or lawyers’ strikes, a hearing was held on 23 September 1997. At the hearing the lawyer retained by Mr Sannino produced a list of witnesses he wanted to be summoned to appear in court. They were mainly people who would say that the applicant had been less directly involved in the management of X, a commercial company, after February 1989. The president of the court granted the request.
6. At a hearing on 18 November 1997, Mr Sannino was represented by a different lawyer of his choosing, Mr G., whom he had retained on 13 September 1996. Mr G. produced the list of witnesses again. The court again granted leave for the persons named in the list to be summoned. A number of witnesses were examined on 3 November 1998 in the presence of the applicant and Mr G.
7. In a note deposited with the registry of the Naples District Court on 18 January 1999, Mr G. announced that he was withdrawing from the case. He said that the applicant had been informed accordingly by registered letter sent on 18 January 1999. On 19 January 1999 the court assigned the applicant a defence lawyer, Mr B.
8. On 25 January 1999 Mr B. was informed of the date of the next hearing (17 February 1999). The note he received did not, however, mention that he had been officially assigned to represent Mr Sannino. No notification was sent to Mr Sannino.
9. Mr B. did not appear at the hearing on 17 February 1999, but the applicant did. The court ordered Mr B. to be replaced by another official defence lawyer, Mr M., and adjourned the case to 16 March 1999.
10. On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr A. One of the witnesses called by the prosecution was examined by the prosecution’s representative and cross-examined by the lawyer of one of the applicant’s co-defendants. The court adjourned the proceedings to 5 May 1999 and ordered the other witnesses to be summoned.
11. On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr O. Mr Sannino made a number of spontaneous statements. A witness called by the prosecution was examined. Having regard to the absence of two other prosecution witnesses, the court adjourned its examination of the case to 16 June 1999. The hearing was not held on that date and the proceedings were adjourned on account of the European parliamentary elections.
12. Further hearings were held on 2 November and 17 December 1999 and on 18 January and 29 March 2000, to which the witnesses on the applicant’s list were not summoned. Mr B., who had still not appeared, was replaced by a different court-appointed defence lawyer each time.
13. The record of the hearing on 2 November 1999 mentions that the applicant was present, which the applicant himself denies. He states that he attended his trial for the last time on 5 May 1999 and that after the adjournment of 16 June 1999 he was not notified of the date of the next hearing (2 November 1999). A notice of hearing had in fact been issued to a person who did not have authorisation (persona non abilitata) to receive notices. The Government produced a note (relata di notifica) before the Court, drawn up by a court bailiff, according to which notice of the hearing on 2 November 1999 had been served personally on 23 July 1999 on a person identifying himself as Giuseppe Sannino. The applicant maintains that the signature appearing on the note is not his and that on 23 July 1999 he was not at home, but at the Monteprandone Hotel in San Benedetto del Tronto, as had been proved by his lawyer in the appeals lodged after his conviction. Furthermore, he alleges, the indication that the notice of hearing was served on him personally was added by the court bailiff more than five years after the material time, “at the request of the office of the co-Agent at the Permanent Representation of Italy”.
14. A final hearing was held on 12 April 2000. Neither the applicant nor Mr B. appeared. Mr B. was replaced by a court-appointed lawyer. Witnesses were examined.
15. In a judgment of 12 April 2000, the text of which was deposited with the court’s registry on 19 April 2000, the Naples District Court sentenced the applicant to two years’ imprisonment.
16. The applicant was not officially informed that the judgment against him had been deposited with the registry. He submits that, not having been aware of the conviction, he was unable to avail himself of his right to appeal within the statutory thirty-day period.
17. He claims that he did not learn of his conviction – which had become final on 29 May 2000 – until 11 May 2001, when he asked for a copy of his criminal record.
18. The applicant also learnt that Mr B. had been appointed to represent him, whereupon he contacted him.
19. Through Mr B. the applicant lodged an application on 15 November 2001 for leave to appeal out of time. He claims that the notice of the date of the hearing of 2 November 1999 was void on the ground that the court bailiff’s report did not refer to the standing of the person on whom it had been served. Moreover, Mr B.’s appointment was – he alleges – unlawful because his name did not appear on the list of official defence lawyers. In any event Mr B. had never been informed of his appointment. In the applicant’s submission, the time-limit for lodging an appeal had therefore never started running.
20. At the same time, again through Mr B., the applicant appealed against the judgment of 12 April 2000. He sought an acquittal on the merits and requested the investigation to be reopened for the purpose of hearing evidence from the witnesses indicated in the defence’s list.
21. By an order of 8 March 2002, the Naples District Court dismissed the application for leave to appeal out of time. It observed that the applicant referred to matters regarding the conduct of the trial at first instance that should have been raised prior to the date on which the judgment of 12 April 2000 had become final. Leave to appeal out of time was granted only where the convicted person proved that he had been prevented by a case of force majeure from taking certain steps within the statutory time-limit, and not where he alleged procedural defects. In those conditions it was not necessary to ascertain whether the facts of which the applicant complained were genuine.
22. On 29 March 2002 the applicant lodged an appeal on points of law. He alleged that the Naples District Court had wrongly construed the relevant provisions of domestic law, namely, Articles 175 and 670 of the Code of Criminal Procedure (“the CCP” – see “Relevant domestic law” below). He stated that, through no fault of his own, he had not been aware of the judgment.
23. In a judgment of 4 March 2003, the text of which was deposited with the registry on 26 March 2003, the Court of Cassation declared the appeal inadmissible. It observed that the applicant was complaining of flaws in the appointment of his court-appointed defence counsel and the service of the notice of the date of the hearing of 2 November 1999. Those flaws could have resulted in certain measures being annulled on grounds of procedural errors, but had been cured (sanate) when the conviction had become final.
24. On 29 April 2002 the Naples public prosecutor’s office ordered execution of the sentence imposed on the applicant by the judgment of 12 April 2000. Execution was stayed, however.
25. On 11 June 2002 the applicant requested the application of an alternative measure to detention, namely, probation (affidamento in prova al servizio sociale). By an order of 28 June 2005, the Naples Post-Sentencing Court granted the applicant’s request. On 5 September 2005 the applicant declared that he accepted the obligations stipulated in the probation order, namely, not to leave the district (comune) of Casoria without prior authorisation of the judge supervising enforcement of sentences; to devote himself fully to his work at the M. company; not to leave his house before 8 a.m. and not to return after 8 p.m; not to associate with reoffenders; and to report to the police station at least three times per week.
26. Article 175 §§ 2 and 3 of the CCP provides for the possibility of applying for leave to appeal out of time. The relevant parts of that provision were worded as follows at the material time:
“In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [effettiva conoscenza] [of it] ... [and] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or, in the case of a conviction in absentia having been served ... on his lawyer ..., that he did not deliberately refuse to take cognisance of the procedural steps.
A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learnt [of the judgment], failing which it shall be declared inadmissible.”
27. The validity of a conviction may be contested by means of an objection to execution under Article 670 § 1 of the CCP, the relevant parts of which provide:
“Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable, he shall, [after] assessing on the merits [nel merito] whether the safeguards in place for a convicted person deemed to be untraceable have been observed, ... suspend its enforcement, ordering, where necessary, that the person be released and that defects in the service of process be remedied. In such cases the time allowed for appealing shall begin to run again.”
28. Under Article 97 §§ 1, 4, 5 and 6 of the CCP:
“1. A defendant who has not appointed a lawyer of his own choosing or finds himself without one shall be assisted by a court-appointed defence lawyer.
...
4. Where defence counsel’s presence is necessary and [the lawyer] chosen by the defendant or the court-appointed lawyer ... has not been found, has not appeared or has withdrawn from the case, the judge shall appoint as his replacement another defence lawyer immediately available [reperibile], to whom the provisions of Article 102 shall apply [under that provision, the replacement lawyer exercises the rights of the defence counsel and is subject to the same obligations]. ...
5. The court-appointed defence lawyer shall defend his client [prestare il patrocinio] and shall not be replaced other than for a legitimate reason [giustificato motivo].
6. The court-appointed lawyer shall cease to act if [the defendant] appoints a lawyer of his own choosing.”
29. A defence lawyer who has just been appointed may request an adjournment of the hearing date. Article 108 § 1 of the CCP provides, inter alia:
“Where a defence lawyer withdraws from the case, has his appointment revoked or is incompatible or abandons the case, the defendant’s new lawyer or the court-appointed [defence lawyer] can request sufficient time [congruo], of no less than seven days, in which to study the file and acquaint himself with the facts of the case.”
30. In accordance with Article 148 § 5 of the CCP, the reading out of decisions to persons present in the courtroom and the information given to them orally by the judge “shall replace formal notice [sostituiscono le notificazioni], on condition that they are noted in the record of hearing”.
31. After production of the evidence requested by the parties, the judge may, if he considers it “absolutely necessary”, order that further evidence be adduced (Article 507 § 1 of the CCP).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-23473
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: RAMADAN v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicant, Mr Amin Abdel Hafiz Mohamed Ramadan, is an Egyptian national, who was born in 1957 and currently lives in Tápióbicske, Hungary. The application was introduced by the applicant’s wife, Mrs J. Ramadan, on his behalf. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Hungary from Egypt in 1990 as a tourist. He has lived there ever since, although he never obtained a residence permit. In 1992 he married a Hungarian national. Three children have been born of the marriage.
On 15 December 1995 the Budapest Regional Court convicted the applicant of attempted murder on account of the fact that, in the course of a quarrel, he had stabbed a Mr A. He was sentenced to four years’ imprisonment and to expulsion from Hungary on his release from prison. On 12 June 1996 the Supreme Court upheld the judgment.
Subsequent to his early release from prison, on 4 July 1997 the Aliens Administration Department of the Budapest Police Headquarters ordered that the applicant be expelled and banned from the territory of Hungary for a ten-year period. The territorial ban was made under Article 23(1a) of Act no. 86 of 1993 on Aliens Administration. He unsuccessfully lodged an objection against the ban with the National Police Headquarters.
On 21 May 2001 the applicant’s petition for a pardon was turned down by the President of the Republic. On 31 August 2001 the Aliens Administration Department ordered the immediate enforcement of the expulsion order.
On 26 March 2002 the President of the Republic pardoned the applicant in respect of the territorial ban.
The applicant’s wife submitted that, notwithstanding this pardon, no residence permit has ever been issued to the applicant.
On 20 December 2002 the Government informed the Registry that – despite the grant of a pardon removing any legal obstacles to the issue of a residence permit – the applicant had failed to request a permit from the competent Budapest and Pest County Regional Directorate of the Immigration and Naturalisation Office. Meanwhile, criminal proceedings have been instituted against the applicant on charges of drug abuse. In this connection, a ‘certificate of temporary stay’, to be renewed monthly, has been issued to the applicant ex officio pending his trial. A bill of indictment was preferred on 7 November 2002.
On 10 February 2003 the Registry invited the applicant to comment on the Government’s submissions. This letter was received at the applicant’s address against signature on 18 February 2003. There has been no communication with the Registry from the applicant ever since.


ITEMID: 001-60912
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF NIKOLOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3 in that the applicant was not brought before a judge or other officer exercising judicial power;No violation of Art. 5-1 in respect of the initial period of detention;Violation of Art. 5-3 in respect of the length and lack of justification for the detention pending trial;Violation of Art. 5-1 in respect of the delay in release;Violation of Art. 5-4 in that the applicant's appeal detention was not examined speedily;Violation of Art. 5-4 in respect of refusal of access to the case file;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant, who was born in 1981, was a minor at the relevant time.
9. On 5 April 1997 he was arrested on the suspicion of having destroyed a car with the use of explosives.
10. On the day of his arrest he was brought before an investigator who charged him under Article 333 in conjunction with Articles 330 § 1 and 3 of the Penal Code. The investigator also decided to detain the applicant pending trial. This decision, which apparently was confirmed on an unspecified date by a prosecutor, only referred to Article 152 § 1 of the Code of Criminal Procedure.
11. On 2 May 1997 the applicant appealed to the District Prosecutor's Office in Plovdiv requesting his release.
12. On 20 May 1997 this request was refused on the ground that the applicant was charged with a “serious wilful offence”, within the meaning of Article 152 § 1 of the Code of Criminal Procedure.
13. On 29 May 1997 the applicant's mother appealed to the Regional Prosecutor's Office against the refusal of the District Public Prosecutor. She requested her son's release on the ground that he needed medical supervision and possibly surgery. A copy of a medical certificate was also produced, indicating that the applicant was suffering from a tumour to his right hand which was reappearing despite two surgical operations for its removal.
14. On 12 June 1997 the applicant's lawyer requested the Regional Investigation Authorities (OSS) to order his client's examination by a medical doctor with a view to establishing his mental state and whether or not the tumour to his hand required treatment. This request was apparently granted.
15. By decision of 4 July 1997 the Regional Public Prosecutor's Office refused to release the applicant. The decision stated that the district prosecutor had erred in relying on Article 152 § 1 of the Code of Criminal Procedure as the offence of which the applicant had been accused was punishable, in the case of a minor, by up to three years' imprisonment, and therefore Article 152 § 1 of the Code, which concerned “serious wilful offences” (those punishable by more than five years' imprisonment) was not applicable. However, it was clear from the findings of the investigation that there existed a “prima facie” danger of absconding, committing further offences, or obstructing the investigation, such a danger being a ground for detention pending trial under Article 152 § 4 of the Code of Criminal Procedure.
16. On 9 July 1997 the applicant's lawyer submitted to the District Prosecutor's Office another request for release.
He stated that the investigation during which the applicant had fully cooperated and had made confessions, was completed, that the applicant needed medical treatment, that he was psychologically unstable which transpired from the opinion of a psychiatrist who had examined him while in detention, and that Article 378 of the Code of Criminal Procedure allowed pre-trial detention of minors only in exceptional circumstances.
It is unclear whether this request was examined.
17. On 5 August 1997 the applicant's lawyer appealed to the District Court in Plovdiv against his client's pre-trial detention and requested a public hearing.
He relied on the arguments already raised before the prosecutors and emphasised that the provision of Article 378 of the Code of Criminal Procedure had been disregarded. He also relied on the Convention.
18. On the same day the appeal was sent to the District Public Prosecutor to complete the case file.
19. On 21 August 1997 the District Court received the completed case file, including an appeal for release that had been submitted by the applicant's mother to the Chief Public Prosecutor's Office on 8 August 1997. The District Court listed the case for a hearing on 25 August 1997.
20. On 25 August 1997 the court adjourned the hearing to 16 September 1997, as the applicant's lawyer had not been summoned properly. The court also ordered a medical report and appointed three medical experts.
21. On 29 August 1997 the applicant was brought to a hospital where he was diagnosed as suffering from pleurisy, and later from tuberculosis. He remained in hospital for an unspecified period of time and underwent intensive treatment.
22. On 5 September 1997 the applicant's lawyer submitted to the District Court a request for the appointment of medical experts to examine whether the conditions of detention at the premises of the investigator's office would pose a threat to the applicant's health. This request was granted.
23. On 8 September 1997 the experts found that the applicant needed to stay in hospital for at least 45 days, to be followed by a sanatorial placement. The experts concluded that a renewed detention of the applicant at the premises of the investigator's office in Plovdiv, if ordered within the upcoming six to eight months, would put at peril the applicant's health.
24. On 15 September 1997, the day before the second hearing on his appeal against detention, the applicant's lawyer requested to consult the case file. At that time the case file was held by the judge dealing with the appeal. The judge refused.
25. On the same day the applicant's lawyer repeated his request in writing. The judge refused in writing on 16 September 1997.
26. The hearing before the District Court resumed on 16 September 1997. The applicant and his lawyer were both present. The applicant's lawyer unsuccessfully asked for an adjournment as he had been refused access to the case file.
27. The judge heard the medical expert and decided to substitute the applicant's pre-trial detention by a more lenient measure, “parental supervision”, in view of his medical condition.
28. Rejecting the applicant's argument that his detention had been illegal from the outset, the judge stated that he had been lawfully detained. In particular, although the authorities had initially relied on Article 152 § 1 of the Code of Criminal Procedure which was inapplicable, this defect had been remedied on 4 July 1997 when the competent prosecutor had confirmed the applicant's pre-trial detention under the pertinent rule, Article 152 § 4 of the Code.
Furthermore, the substantive elements justifying the applicant's detention had existed. In particular, the nature of the offence he had been charged with was important: it was of the category of offences that imperilled the safety of the public at large.
29. Despite the District Court's decision to release the applicant from pre-trial detention and place him under “parental supervision”, he was not released immediately.
30. On 17 September 1997 the District Court transmitted its decision of 16 September 1997 to the District Public Prosecutor for execution.
31. Since the applicant was detained in premises under the administration of the Regional Investigation Service, the decision was thereupon transmitted to that service.
32. On an unspecified date the applicant's mother signed the necessary papers regarding “parental supervision”.
33. The applicant was released on 23 September 1997.
34. On 29 May 1998 he was found guilty and sentenced to one year imprisonment, suspended.
35. At the relevant time and until the reform of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator's decision was subject to approval by a prosecutor.
36. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court's Nikolova v. Bulgaria judgment ([GC], no. 31195/96, ECHR 1999-II).
37. Article 152 of the Code of Criminal Procedure, as in force at the relevant time, set out the legal grounds for pre-trial detention and distinguished between cases where the charges concerned a “serious wilful offences” and all other cases.
Under its paragraphs 1 and 2, and according to the practice of the Supreme Court, Article 152 required that a person charged with a serious wilful offence had to be remanded in custody. An exception was only possible where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded since, for example, the accused was seriously ill. The detainee bore the burden to prove the existence of such exceptional circumstances.
Under paragraph 4 of Article 152, where the case concerned an offence which was not a “serious offence”, the accused could be detained pending trial only if it was established that there existed a danger of absconding, reoffending or obstructing the course of justice.
38. Article 93(7) of the Penal Code provides that a “serious offence” is one punishable by more than five years' imprisonment.
39. The wilful infliction of substantial damage to objects with the use of explosives is an offence under Article 333 in conjunction with 330 §§ 1 and 3 of the Penal Code which, if committed by a minor (Article 63 § 1(3) of the Penal Code), is punishable by up to three years' imprisonment.
40. Article 378 § 2 of the Code of Criminal Procedure provides that minors may be remanded in custody only in exceptional circumstances. No relevant case-law under this provision is reported.
41. Paragraph 1(1) of the same provision states that a minor charged with having committed a criminal offence may be placed under “parental supervision”, as a measure to secure appearance before the competent authorities and prevent reoffending. In such cases, the parent must sign a declaration undertaking to supervise the minor and secure his or her appearance before the competent authority.
42. The Code of Criminal Procedure as in force at the relevant time did not state expressly whether a minor whose pre-trail detention was substituted by parental supervision should be detained pending the making of an undertaking by a parent.
In respect of release on bail, Article 150 § 5 of the Code stated that it was only possible after recognisance was given.
By contrast, release must be immediate upon acquittal or where a sentence without imprisonment has been pronounced (Article 307 § 2 of the Code).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1