ITEMID: 001-113289
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VESELOV AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). These operations led to their criminal conviction for drug dealing.
6. The facts of each individual criminal case, as submitted by the parties, are summarised below. The applicants disagreed with the Government on the underlying causes and the circumstances leading to the test purchases, and where this is so both versions are given. As regards the factual details of the covert operations, they are not in dispute. In particular, it is common ground that the applicants knowingly procured drugs in the course of the test purchases.
7. The applicant was born in 1989 and lives in Moscow. At the time of his arrest he was a third-year student at a management college. He is currently serving a prison sentence in a correctional colony.
8. According to the Government, on 19 May 2009 a Mr X voluntarily went to the police and reported that two persons, “Viktor” (the applicant) and “Ruslan”, were selling hashish at 600 Russian roubles (RUB) per gram.
9. According to the applicant, X was a drug addict, with a previous criminal conviction for illegal possession of drugs, and he was a police informant who had previously taken part in test purchases of drugs. To support these allegations the applicant provided a copy of the judgment against X and copies of four judgments in unrelated criminal proceedings against four different persons where X featured as the buyer in test purchases of cannabis, heroin and hashish from the accused.
10. It is common ground, supported by the official records, that the police ordered a test purchase and proceeded with it immediately after having received the information from X. The order indicated the applicant’s name and stated that he was suspected of selling hashish at RUB 600 per gram. X phoned “Ruslan” and told him that he wished to buy hashish. The police officers were present when X was speaking to “Ruslan”, but the conversations were not recorded. X was given RUB 3,000 that had been photocopied. He met “Ruslan” later on the same night and together they met the applicant who took RUB 1,200 from them and went away to purchase the drugs. The applicant was later arrested and was found in possession of banknotes that matched the photocopied ones. Throughout the test purchase X had his mobile phone turned on with the police officer’s number dialled, which enabled the police to overhear their conversations. These communications were not recorded. Neither “Ruslan” nor the applicant’s dealer were arrested or prosecuted, allegedly on the grounds that their identities could not be established.
11. X testified at trial that he had met the applicant and “Ruslan” at a local supermarket about two weeks before the test purchase. In the course of their conversation the applicant had told him that he could get some hashish for him. “Ruslan” had given him his phone number. X had then volunteered that information to the police and agreed to take part in the test purchase. He testified that he had not previously bought drugs from the applicant. When the defence counsel cross-examined X the court disallowed questions about his criminal record and whether he was a drug user. It also dismissed the motion to have the judgments proving that X had previously acted as a buyer in test purchases of drugs accepted as evidence.
12. The policemen who had initiated and carried out the test purchase testified at the trial that prior to X’s information they had not known the applicant as drug dealer. They reiterated the details of the test purchase.
13. At the trial the applicant pleaded guilty of assisting “Ruslan” in buying drugs, but claimed that it had been the result of police incitement. He claimed that he and “Ruslan” were occasional smokers of hashish but that he was not selling or otherwise supplying it to anyone. The test purchase was the first time he had agreed to help “Ruslan”, or anyone, in obtaining drugs, and he had only done so because of his insistent prompting.
14. The person named “Ruslan” was not called to be cross-examined at the trial, allegedly because the investigating authorities had failed to establish his identity.
15. On 15 September 2009 the Nikulinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The court did not make an express assessment of the applicant’s plea of entrapment.
16. The applicant appealed. He reiterated his plea of provocation, claiming, inter alia, that X had been a police informant and challenging the refusal of the firstinstance court to admit the relevant documents as evidence. He also pointed out that the police had no other information suggesting that he had previously sold drugs. He also complained that the authorities had not made any attempts to find and question “Ruslan”, who had played a key role in the test purchase and could have cast light on the extent of the provocation.
17. On 11 November 2009 the Moscow City Court upheld the firstinstance judgment. It reiterated the finding that the applicant had attempted to sell the narcotic drug during the test purchase and implicitly dismissed the plea of entrapment without answering the applicant’s arguments.
18. The applicant was born in 1982 and lives in Yekaterinburg. He is currently serving a prison sentence in Nijniy Tagil.
19. According to the Government, on 13 June 2006 Ms Y voluntarily went to the police and reported that she was a heroin addict and that she wished to inform on her drug dealer. She said that she had been buying heroin from the applicant for a long time, but did not specify for how long. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so.
20. According to the applicant, he knew Y from primary school and through his girlfriend. He knew that she was a drug user; she would occasionally offer to sell him second-hand mobile phones of unclear provenance. A few months before the test purchase she had sold him a DVD player which had later been seized by the police as a stolen item. Because of that, Y owed the applicant RUB 6,000 which she was unable to repay. On 13 June 2006 she contacted him with an offer to redeem the debt, but told him that she would only do so if he got her some heroin, of which she was badly in need. The applicant contacted an acquaintance, a drug dealer, and arranged for the quantity Y had requested. He claimed that it was the first time he had agreed to purchase drugs for Y or for anyone.
21. It is common ground between the parties that prior to Y’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing.
22. On the same day the police ordered a test purchase. The order indicated the applicant’s name and address and stated that he was suspected of selling heroin at RUB 500 per gram. Y was given RUB 3,000 in banknotes that had been photocopied. She phoned the applicant and arranged to purchase five grams of heroin. The content of the phone call, which was made from police premises and in the presence of police officers, was not recorded. The applicant met Y at the agreed place in town and she passed him the money. The police arrested the applicant on the spot. He was in possession of RUB 3,000 in banknotes that matched the ones the police had photocopied. Y handed in a packet of heroin allegedly purchased from the applicant. The applicant claimed that he had not supplied the drugs handed in by Y because he was supposed to give them to her later.
23. After the arrest the applicant offered to inform the police on the dealer from whom he had obtained the heroin for Y and to conduct a test purchase from him, but the offer was not followed up.
24. The case was examined at first instance by the Ordzhonikidzevskiy District Court of Yekaterinburg. At the trial the applicant pleaded partly guilty but claimed that the crime he had committed was the result of police entrapment. He pointed out, in particular, that there was no evidence of his prior involvement in drug dealing. He maintained that Y had previously asked him to buy heroin for her, knowing that he had an acquaintance who was a dealer, but he had always refused. 13 June 2006 was the first time he had agreed to help her, and this was only because she had promised to pay back her debt if he did. He claimed that her participation in the test purchase was not “voluntary”, but prompted by the police, who had manipulated her by playing on her drug addiction.
25. Y testified at the trial that on 13 June 2006 she had voluntarily gone to the police to inform them about the applicant’s involvement in drug trafficking. She also stated that she had previously bought heroin from the applicant at least three times.
26. The police officer who carried out the test purchase testified at the trial that on 13 June 2006 Y had voluntarily gone to the police station and reported that she was a heroin addict and that she wished to inform them that the applicant was her drug dealer. He also stated that she had collaborated with him for six months prior to the test purchase, and that she had taken part in unrelated test purchases of drugs from other persons. He further stated that prior to 13 June 2006 the police had had no information on the applicant and that the test purchase was ordered as soon as Y had reported him. She had been asked to make a phone call to the applicant immediately from the police station; when she did so she had only asked the applicant to sell her heroin, without entering into any other subjects.
27. The court also cross-examined another policeman who had taken part in the test purchase, and read out statements given by the attesting witnesses in the investigation, in which they set out the details of the test purchase. On 28 September 2006 it found the applicant guilty of attempted illegal sale of narcotic drugs in particularly large quantities. It did not expressly refer to the applicant’s plea of entrapment, having found the fact of the sale sufficiently established and having noted the compliance of the test purchase with the procedural requirements. It considered that the applicant’s version of events, whereby he met Y because of the debt, had been refuted by other evidence. The applicant was sentenced to ten years’ imprisonment in a high-security correctional colony.
28. The applicant appealed, pleading police incitement of the offence he was convicted of and alleging that the firstinstance court had incorrectly assessed the evidence.
29. On 6 December 2006 the Sverdlovskiy Regional Court upheld the first-instance judgment. It did not address the plea of entrapment, but limited itself to finding the applicant’s conviction lawful and well-founded.
30. The applicant was born in 1977 and lives in Moscow. Trained in the past as a policeman, in 2002 he was convicted of a murder and, after his release, worked as a welder. He is currently serving a prison sentence in a correctional colony in the Republic of Mordovia following his conviction of the drug offence described below.
31. According to the Government, on 4 September 2008 Ms Z voluntarily presented herself at the local office of the Federal Service for Drug Control (ФКСН, the police) and reported that she was a heroin addict and that she wished to inform the authorities that the applicant was a drug dealer. The police asked her to participate in a test purchase of drugs from the applicant, and she agreed to do so.
32. It is common ground between the parties that prior to Z’s submissions the police had not been in possession of any information suggesting the applicant’s possible involvement in drug dealing. However, the Government also claimed that this information was corroborated by a report of an officer of the Federal Service for Drug Control drawn on the same day, 4 September 2008.
33. According to the applicant, he had known Z for about ten years through his personal contacts; he was also acquainted with a certain Ms P, also through personal contacts. From his police training with the Federal Service for Drug Control he knew that the two women were drug addicts, with criminal records related to drug dealing, and that they were police informants. On 4 September 2008 Z called him and asked for the phone number of P because she wanted to buy drugs from her; she said that she was suffering severe withdrawal symptoms and was on the verge of committing suicide. Later the same day she called him again and asked him to accompany her to the meeting with P because she feared that P would not sell to her if she was on her own. Out of compassion he agreed to go along. When the three of them met, P sold Z two grams of methamphetamine, a home-made narcotic drug produced with ephedrine and referred to throughout the proceedings by its slang name “speed” («винт»). The applicant was arrested on the spot. He alleged that he did not have either money or drugs on him during the arrest, claiming that the money was planted on him during the search. He acknowledged, however, that he assisted Z in buying the “speed” but maintained that it was the first time he had done so for Z or for anyone, having succumbed to her persistent begging.
34. The official records presented the following account of the test purchase. Having received the information from Z, the police ordered a test purchase and proceeded with it immediately. The order indicated the applicant’s name and stated that he was suspected of selling “speed” for RUB 500 per gram. Z was given RUB 1,000 in banknotes that had been photocopied. She phoned the applicant from police premises and asked him to get the drugs for her. He called her back later and they arranged to purchase two grams of “speed”. The police officers were listening when Z spoke to the applicant on the phone, but the conversations were not recorded. The applicant met Z later on the same night and together they met another person, P. When Z gave a signal to the police they arrested the applicant and took him to the police station. At the station the police examined a wallet allegedly found on him which contained RUB 1,000 in banknotes that matched the photocopied ones. Z handed in a syringe with “speed” in it, allegedly purchased from the applicant. P was also arrested, but she was released shortly afterwards and was not prosecuted.
35. At the trial the applicant pleaded guilty of helping Z to buy drugs, but claimed that he had been induced by the police to do so and requested that the evidence relating to the test purchase be excluded.
36. Z testified that she had volunteered information about the applicant to the police because she thought it would make it easier for her to overcome her addiction. She stated that before the test purchase she had never bought drugs from the applicant; however, since they used to buy and consume them together she told the police that she would be able to convince him to obtain the drugs for her. She further stated that she did not know if the applicant had previously sold drugs to anyone else, and she was almost certain he did not produce them himself. She also admitted that she used to buy drugs from another source. Finally, concerning the circumstances of the test purchase, she testified that she gave the money to the applicant and took the syringe from him and that she did not see P handle either the money or the syringe.
37. The applicant requested that P be called and cross-examined, but the court noted that she had been summoned and had absconded, and that her whereabouts were unknown. The court considered this to constitute exceptional circumstances allowing it to take her written depositions into account. Despite the applicant’s objections, it read out her pre-trial statement saying that she had delivered the drugs to the agreed place at the applicant’s request, but that the sale had been arranged by him.
38. Four police officers were cross-examined about the covert operation. They reiterated the details of the test purchase. One of them testified, when asked, that Z was not remunerated for her collaboration with the police.
39. On 17 February 2009 the Zyuzinskiy District Court of Moscow found the applicant guilty of attempted illegal sale of narcotic drugs and sentenced him to four and a half years’ imprisonment. The sentence was increased to five years for breach of parole relating to his previous conviction.
40. The applicant appealed, pleading police incitement of the offence he was convicted of and complaining that the first-instance court had incorrectly assessed the evidence.
41. On 13 May 2009 the Moscow City Court examined the appeal. It dismissed the plea of entrapment, stating that the test purchase was based on the information given by Z to the police, notably that she “had previously bought drugs from the applicant on multiple occasions”, and concluded that the test purchase was therefore lawful. It upheld the first-instance judgment as well-founded.
42. Article 228.1 of the Criminal Code (as in force at the material time) provided that the unlawful sale of narcotic drugs or psychotropic substances carried a sentence of four to eight years’ imprisonment; the same offence involving a large quantity of drugs or committed by a group of persons acting in conspiracy carried a sentence of up to twelve years’ imprisonment; the same offence involving a particularly large quantity of drugs carried a sentence of up to twenty years’ imprisonment (Article 228.1 § 3 (d)).
43. On 15 June 2006 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 14) on jurisprudence in criminal cases involving narcotic drugs or psychotropic, or strong, or toxic substances. The Plenary ruled, in particular, that any sale of such substances, if carried out in connection with a test purchase under the Operational-Search Activities Act, should carry charges of attempted sale (Article 30 § 3 in conjunction with Article 228.1 of the Criminal Code). It also set out the following conditions on which the results of the test purchase could be admitted as evidence in criminal proceedings: (i) they must have been obtained in accordance with the law; (ii) they must demonstrate that the defendant’s intention to engage in trafficking of illegal substances had developed independently of the undercover agents’ acts; and (iii) they must demonstrate that the defendant had carried out all the preparatory steps necessary for the commission of the offence.
44. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provided as follows at the material time:
“An operational-search activity is a form of overt or covert activity carried out by operational divisions of State agencies authorised by this Act (hereinafter ‘agencies conducting operational-search activities’) within the scope of their powers, with a view to protecting the life, health, rights and freedoms of individuals and citizens, or property, and protecting the public and the State against criminal offences.”
“The aims of operational-search activities are:
– to detect, prevent, intercept and investigate criminal offences as well as searching for and identifying those responsible for planning or committing them;
...”
“...
A person who considers that an agency conducting operational-search activities has acted in breach of his or her rights and freedoms may challenge the acts of that agency before a higher-ranking agency conducting operational-search activities, a prosecutor’s office or a court.
...”
“In carrying out investigations the following measures may be taken:
...
4. test purchase;
...
9. supervision of postal, telegraphic and other communications;
10. telephone interception;
11. collection of data from technical channels of communication;
12. operational infiltration;
13. controlled supply;
14. operational experiments.
...
Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunications companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service, the agencies of the Interior Ministry and the regulatory agencies for drugs and psychotropic substances in accordance with decisions and agreements signed between the agencies involved.
...”
“[Operational-search activities may be performed on the following grounds;] ...
1. pending criminal proceedings;
2. information obtained by the agencies conducting operational-search activities which:
(1) indicates that an offence is being planned or has already been committed, or points to persons who are planning or committing or have committed an offence, if there is insufficient evidence for a decision to institute criminal proceedings;
...”
“Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning:
1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory;
2. persons who are conspiring to commit, or are committing or have committed an offence whose investigation is mandatory;
...
Test purchases ..., operational experiments, or infiltration by agents of the agencies conducting operational-search activities or individuals assisting them, shall be carried out pursuant to an order issued by the head of the agency conducting operational-search activities.
Operational experiments may be conducted only for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons who are planning or committing or have committed a serious crime.
...”
“The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused.
...
The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons.
...”
“To pursue their aims as defined by this Act, agencies conducting operational-search activities may create and use databases and open operational registration files.
Operational registration files may be opened on the grounds set out in points 1 to 6 of section 7(1) of this Act ...”
“Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...”
45. On 24 July 2007 section 5 of the Act was amended to prohibit agencies conducting operational-search activities from directly or indirectly inducing or inciting the commission of offences.
46. Article 125 of the Code of Criminal Procedure of the Russian Federation, in force from 1 July 2002, provided at the material time that orders of a preliminary interview officer, investigator or prosecutor that were capable of encroaching on the constitutional rights and freedoms of participants in criminal proceedings or obstructing their access to justice could be challenged before a court whose jurisdiction covered the place of the investigation. Subsequent changes in the Code added the head of the investigating authority to the list of officials whose acts could be challenged.
47. On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No. 1) on the practice of judicial examination of complaints under Article 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary ruled, inter alia, that decisions of officials of agencies conducting operational-search activities must also be subject to judicial review under the provisions of Article 125 if the officials were acting pursuant to an order by an investigator or the head of the investigating or preliminary inquiry authority.
48. The Code of Criminal Procedure provides, in so far as relevant:
“1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings].
...”
“...
5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial.
49. Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court is considered to be a new circumstance warranting a reopening (Article 392 § 4 (4)).
50. The Court conducted a comparative study of the legislation of twenty-two member States of the Council of Europe (Austria, Belgium, Bulgaria, Czech Republic, Croatia, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Lithuania, “the former Yugoslav Republic of Macedonia”, Poland, Portugal, Romania, Slovenia, Spain, Turkey and the United Kingdom) concerning the use of undercover agents in test purchases and similar covert operations.
51. The comparative study showed that in all of these countries it is possible for the police to carry out undercover operations, in particular in drug-trafficking cases, according to the procedure set out in the relevant laws and regulations. Only in Ireland is there no formal legislative or regulatory basis for the use of undercover police. A number of countries provide also for the involvement of private individuals and authorise resort to undercover agents only when the collection of evidence by other means is too complicated or impossible.
52. Research reveals that in most of the countries covered there is exclusive or shared responsibility of the judicial bodies in the authorisation procedure, although in some the decision lies with the public prosecutor, the administrative authorities or high-level police officials.
53. A judicial authorisation is required in Bulgaria (court), Croatia (investigating judge), Estonia (investigating judge), Greece (indictments chamber), Liechtenstein, Poland (regional court with prior agreement of the Prosecutor General), Slovenia (investigating judge), and Turkey (judge).
54. In Austria and Belgium the authority to sanction undercover operations lies exclusively with the public prosecutor.
55. A number of countries provide for the involvement of the prosecutor or the court, or both, depending, for example, on the type of operation or, more commonly, the stage of the proceedings.
56. In the Czech Republic, “fictitious transfers”, which include test purchases, require authorisation by the public prosecutor, whereas the use of an undercover agent (in connection with particularly serious offences) can be authorised only by a High Court judge. Under German law, the use of undercover agents must be authorised by the public prosecutor, and additionally by a court if the operation targets a particular person or involves entry into private premises. In Romania also the authorisation is given by the public prosecutor, but video and audio recording during the operation requires prior authorisation by a judge.
57. In France, the authorisation is delivered by the public prosecutor at the preliminary inquiry stage, and by the investigating judge (juge d’instruction) during the pre-trial investigation. Lithuanian law, in a similar vein, requires the authorisation of a pre-trial judge during a pre-trial investigation, while at an earlier stage the authorisation of the prosecutor suffices. In “the former Yugoslav Republic of Macedonia” special investigative measures in the pre-investigation phase can be ordered either by the public prosecutor or by an investigating judge, but once an investigation has been opened the authorisation can be given only by the latter.
58. In Portugal, covert operations within the framework of the inquiry are subject to the prior authorisation of the competent member of the Public Prosecution, with mandatory communication to the investigating judge, and are deemed to be ratified if no order refusing permission is issued within 72 hours. If the operation is carried out in the framework of crime prevention, it falls within the competence of the investigation judge to give the required authorisation at the proposal of the prosecution authorities.
59. Spanish law also provides for notification of the investigating judge when authorisation for an undercover operation has been given by the public prosecutor. Such authorisation can also be issued directly by the judge.
60. In Italy there is no requirement for formal authorisation from the prosecutor or a court, but the appropriate authority must give prior notification of the start of the operation to the competent prosecutor. In drug cases, before undertaking an undercover operation, the Central Directorate for Drug Services or its regional or provincial offices need to inform the prosecutor in charge of the investigations, but they do not need their formal approval.
61. In a few countries, there is no involvement of a court or a prosecutor in the authorisation procedure. In Finland, the decision on undercover activities is taken by the Head of the National Bureau of Investigation or the Head of the Security Police, at the request of a regular police department. The decision-making bodies are separate from the services which carry out the operation.
62. In the United Kingdom undercover operations are subject to administrative rather than judicial authorisation. In the House of Lords decision in R v. Loosely [2001] Lord Mackay underlined that although the technique in the United Kingdom for authorising and supervising such practice was very different from the judicial supervision in continental countries, the purpose was the same, namely to remove the risk of extortion, corruption or abuse of power by policemen operating without proper supervision.
The public authorities entitled to authorise the use or conduct of a Covert Human Intelligence Source (CHIS) are laid out in law. Each public authority has its own separate authorising officer.
Authorising officers should not be responsible for authorising their own activities, that is, those in which they themselves are to act as the CHIS or as the handler of the CHIS. Furthermore, authorising officers should, where possible, be independent of the investigation. However, it is recognised that this is not always possible, especially in the case of small organisations, or where it is necessary to act urgently or for security reasons. Where an authorising officer authorises his own activity the central record of authorisations should highlight this and the attention of a Commissioner or Inspector should be drawn to it during his next inspection.
63. In Ireland similarly there is no judicial authorisation procedure. The police or other enforcement agencies both take and carry out all operational decisions concerning undercover operations.
64. The Council of Europe’s instruments on the use of special investigative techniques are outlined in Ramanauskas v. Lithuania ([GC], no. 74420/01, §§ 35-37, ECHR 2008-...).
“... in order to ensure that the use of undercover agents does not unduly interfere with the right to fair trial guaranteed by the European Convention on Human Rights, Article 59 of Legislative Decree No. 15/93 on the prevention of drug-trafficking has been amended by Act No. 45/1996 of 3 September 1996. According to the added paragraph 3 to Article 59, the use of such persons is subject to a court’s approval, which has to be given within 5 days and for a specific period.
The Government is of the opinion that, in view of the supra-legal status of the Convention, as interpreted by the European Court of Human Rights, in Portuguese law (Constitutional Court judgments Nos. 345/99 of 15 June 1999 and 533/99 of 12 October 1999), the Portuguese courts will exercise this supervision and adapt their interpretation of the Code of Criminal Procedure (in particular of Article 126) in such a way as to avoid new violations similar to that found in the Teixeira de Castro case.
In order to facilitate this adaptation, the judgment of the European Court of Human Rights has been published in the Revista Portuguesa de Ciência Criminal (RPCC 10/2000) and also disseminated to the authorities concerned, including the police.”
66. On 10 March 2011 the Committee of Ministers concluded the execution of the judgment in the case of Pyrgiotakis v. Greece (no. 15100/06, 21 February 2008), having adopted Resolution ResDH(2011)11 which read in so far as relevant:
“The Court’s findings have been endorsed in national case-law: it is held that, in conformity with Article 6 of the Convention, the conviction of an accused should not arise solely from the conduct of a police officer involved in the case (acting as agent provocateur), otherwise the requirements of a fair trial are not met (Court of Cassation 193/2009). Furthermore, this conviction should be based on additional, strong evidence, and not only on the testimony of the police officers involved. (Court of Cassation 100/2007, Corfu Court of Appeal 29/2007).”
“In order to prevent similar violations, the Supreme Court set out, in its decision of 16 December 2008, the general principles with regard to cases where the criminal conduct simulation model is employed.
First, the Supreme Court stressed that the criminal conduct simulation model as an investigative technique may not be employed to incite the commission of an offence but may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated.
Secondly, state officials may not act as private persons to incite third parties to commit an offence, while the acts of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such incitement.
Thirdly, it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner, including in situations when contact with third parties is made indirectly through mediators.
Fourthly, the burden of proof in judicial proceedings lies with the state authorities, which have an obligation to refute any argument raised by a defendant in criminal proceedings in respect of the incitement by state agents to commit an offence.
Fifthly, once the act of incitement is established, no evidence obtained through incitement shall be admissible. The confession of an offence as a result of incitement does not eradicate either incitement or its effects.
Sixthly, it is preferred that undercover techniques are supervised by a court although supervision by a prosecutor does not in itself violate the Convention.
This decision of the Supreme Court is binding upon all domestic courts. Thus, it provides a clear and foreseeable procedure in similar cases.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4602
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: WOLFF METTERNICH v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Dutch national, born in 1948 and living in Amsterdam. He is represented before the Court by Mr R.A.U. Baron von Quast-Juchter a lawyer practising in The Hague.
a. Particular circumstances of the present case
The family of the applicant’s mother belongs to the Dutch nobility. Her family is entitled to carry the Dutch noble title of Count (Graaf). The family of the applicant’s father does not belong to the Dutch nobility. Following his parents’ divorce, the applicant officially changed his family name to his mother’s maiden name. It appears that the applicant has added “Graaf” as the last of his first names.
On 4 February 1994, he requested the Minister for the Interior (Minister van Binnenlandse Zaken) to include him in the Netherlands ancestry register (filiatieregister), which would entitle him to carry a noble title. However, as in the Netherlands nobility is only transferred through the paternal line, the Minister rejected his request on 1 July 1994. The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 12 November 1996.
The applicant’s appeal against this decision was dismissed by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 21 January 1998. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State.
In an article published on 4 July 1998 in the weekly “Elsevier”, it was reported that the Queen of the Netherlands, who is the formal President of the Council of State, and the Minister for the Interior pursue a policy of not intervening in the natural decrease of the number of persons belonging to the Dutch nobility.
On 2 October 1998, the applicant’s case was heard before the Administrative Law Division. One of its members, Mr L., repeatedly interrupted the applicant’s lawyer and only displayed a negative interest in the applicant’s submissions.
On 8 October 1998, the applicant challenged (wraking) Mr L. on grounds of bias. On 19 October 1998, the applicant further challenged all members of the Challenge Chamber (Wrakingskamer) of the Council of State, arguing that the entire Administrative Law Division cannot be regarded as impartial.
On 12 November 1998, the Administrative Law Division rejected the applicant’s request of 8 October 1998 and, as the applicant apparently sought to obtain a decision from the Administrative Law Division, did not deal with his request of 19 October 1998.
On 16 March 1999, the Administrative Law Division rejected the applicant’s appeal against the Regional Court’s decision of 21 January 1998.

Insofar as the applicant complained that the Dutch rules on transferral of noble titles is contrary to the prohibition of discrimination under the relevant provisions in a number of international instruments, the Administrative Law Division held that there is an objective and reasonable ground for the difference in treatment as regards transferral of noble titles which lies in the circumstance that it concerns a historical institution which derives its right of existence solely from that historical character and therefore does not lend itself for adaptation to more recent views on equal treatment. The Administrative Law Division further noted that this difference in treatment applies equally to both men and women.
b. Relevant domestic law
Pursuant to the Act on Nobility (Wet op de Adeldom), and apart from the situation in which a Dutch noble title is transmitted via the paternal line at birth, ennoblement can only take place by elevation (verheffing) or incorporation (inlijving). Elevation is only possible for members of the Netherlands royal family. Incorporation is only possible for persons belonging to a foreign family with a recognised noble status in their country of origin and only where a request for incorporation has been made on the moment the person concerned obtains Dutch nationality.
Ennoblement takes place by a Royal Decree (Koninklijk Besluit). Under the relevant provisions of Dutch law governing names, noble titles and predicates form a part of a noble person’s family name. The unlawful carrying of a noble title may attract consequences under Dutch criminal law.
In a decision of 21 February 1995 (Case no. R01.92.0559), the Administrative Law Division held that noble status is to be regarded as a historically grown institute to which, since 1848, no longer any rights and freedoms pertain.


ITEMID: 001-24020
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: F. v. the UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, an Iranian citizen born in 1973, is currently resident in Glasgow. He was represented before the Court by Mr S. Winter, a solicitor practising in Glasgow.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered the United Kingdom illegally on or about 17 April 2001 and on 4 May 2001 claimed asylum on the basis that he feared persecution as a homosexual. He stated that security forces had come to his house because of a satellite television and had become suspicious of the double beds, which he used with his homosexual partner, along with his cousin and his partner. According to his account, all four were arrested for having a satellite dish and detained for four days and beaten. His partner confessed to being homosexual and they were remanded in custody. After being held in prison for three months and four days, he was released on the payment of bribes by his family who feared that he would face the death sentence as a homosexual. He left Iran on 3 April 2001.
By letter dated 15 June 2001, the Secretary of State rejected the asylum application. He found it lacking in credibility that the authorities had kept him so long in custody if they intended to execute him and noted that the applicant had not claimed asylum on arrival in Turkey. However, the ground of rejection was that he was not satisfied that the applicant was in fact Iranian. The applicant appealed to the Adjudicator raising complaints under Articles 3 and 8 of the Convention.
On 18 February 2002, the Adjudicator rejected the applicant’s appeal. He examined the extent of risk to homosexuals in Iran. It appeared that in theory homosexuality in Iran was punished harshly but that in practice the strict regulations, requiring four eye witnesses to the act of homosexual penetration or four confessions from each active partner, rendered convictions hard to achieve. One source was quoted as not having come across any case that went to trial and another that it was so hard to prosecute a case of homosexuality that it almost never happened. Another sociologist and researcher stated that homosexuality was a common phenomenon in Iran and was tolerated as long as it did not disturb public order and remained in private. The Adjudicator concluded that it was extremely unlikely that homosexual activity conducted in private would result in ill-treatment or harassment. Insofar therefore as the applicant alleged that he had been detained on ground of his homosexuality and brought before a court, he observed that there was no question of there being four eyewitnesses to any sexual act. He considered it most unlikely that the security forces acted as the applicant alleged, that the account of his escape was implausible and that the applicant had not been telling the truth about what happened. As the applicant had not expressed any prospect of continuing a relationship with his partner and was not at risk of punishment for acts conducted in private, he found no issue arising under Article 8, notwithstanding the criminal prohibition in Iran was in likely breach of this provision.
The applicant applied for leave to appeal in the Immigration Appeal Tribunal. His grounds relied on Article 8 of the Convention and the existence of a law in Iran prohibiting adult consensual activity which would breach that provision.
On 10 April 2002, the Immigration Appeal Tribunal rejected the applicant’s application for leave to appeal, finding no error of law and that the Adjudicator had quite properly found that there would be no breach of the applicant’s human rights if removed to Iran.
The applicant’s application for legal aid to bring judicial proceedings was refused by the Scottish Legal Aid Board on 25 September 2002. His request for review of the refusal was refused on 7 November 2002.
The applicant may be expelled at any time but directions for his removal have not yet been issued.
This report dated October 2003 stated in respect of homosexuals:
“6.167 Although homosexuality is never spoken about and thus a hidden issue, in practice it is not difficult to encounter homosexuals in Iran. There are special parks in Tehran, known as homosexual meeting places ... A different sexual orientation may, however create problems. Still, homosexuality is practised every day and as long as this happens behind closed doors within your own four walls, and as long as people do not intend to proselytise ‘transvestitism’ or homosexuality, they will most likely remain unharmed.
6.168 Technically, homosexual behaviour is sharply condemned by Islam and the Islamic code of law (Sharia law) ... Sodomy is punishable by death if both parties are considered to be adults of sound mind and free will. It must be proven by either four confessions from the accused, the testimony of four righteous men who witnessed the act or through the knowledge of a Sharia judge ‘derived through customary methods’. If the accused repents before the witnesses testify, the penalty ‘will be quashed’. ...
6.170 So far, no cases of execution only on grounds of homosexual relations have been identified. In fact, the burden of proof is quite high and it would be difficult to prove homosexual liaisons or intercourse. According to some local newspapers there have been instances of execution of homosexuals. It is not confirmed whether the homosexual act alone led to the execution or whether the person was accused on other charges too.
6.171. Last year there were reports that a man accused of sodomising and then murdering his nephew was to be thrown over a cliff in a sack. This was given widespread publicity by the Iranian opposition in the UK and was taken up by the other wires, but we have heard no reports that the sentence was ever carried out.
6.172. However, jurisprudence, burden of proof notwithstanding, certainly has used accusations of homosexuality. Furthermore, it does happen that homosexuality is mentioned as one of the accusations amongst other offences held against the defendant. For instance, accusations of homosexuality have been used in unfair trials, such as the case of a Sunni leader in Shiraz in 1996/97 who was clearly prosecuted for political reasons. There have also been other political cases, although not in the recent past.
6.173. According to the Ta’azirat of November 1983 valid to June 1996 sentences of imprisonment for between 1 and 10 years and up to 74 lashes are possible. The death penalty may also be incurred if the act is deemed ‘Act against God and corruption on earth’. Since June 1996 the revised Ta’azirat omits direct threat of lashes or the death penalty. The penalties of lashing and of death are, however, still judicial options, even though they are not mentioned in the revised Ta’azirat. Reports suggest that since 1996 they have been rarely used. The most recent report of execution [which] is of the death by stoning of a man dates from 1995, on charges of repeated acts of ‘adultery and sodomy’. Reports of use of the death penalty in cases where the only offence is sodomy are extremely difficult to substantiate, and are held to be an unlikely sentence. More usually lashing is the punishment.
6.174. However, strict though the legal position is, expert opinion consulted by the Canadian IRB [Immigration and Refugee Board] states ‘... in practice (homosexuality) is presently, and has been in the past, for the most part tolerantly treated and frequently occurring ... In practice it is only public transgression of Islamic morals that is condemned and therefore Islamic law stresses the role of eye-witnesses to an offence’.
6.175. The same source stated that the police are not empowered nor do they actively pursue homosexual activity of any kind that is performed behind the ‘veil of decency’ of closed doors.
6.176. Sources indicate that there are held to be many differing levels of homosexual activity within Iranian society. In rural areas, even ‘lavat’– sexual behaviour between men - can be considered socially to be compensatory sexual behaviour for heterosexual sexual intercourse, and the practitioners held not to be homosexuals. The key offensive practice is sodomy, or more particularly to be sodomised, as an unnatural inversion of God’s creation, and some experts hold that ‘homosexuals’ are understood in Iran to be willing passive partners.”
This report, cited in the CIPU above and in the Adjudicator’s decision in this case stated inter alia:
“Theoretically, homosexual behaviour is sharply condemned by Islam, but in practice it is present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates ... In practice it is only public transgression of Islamic morals that is condemned, and therefore Islamic law stresses the role of eye-witnesses to an offense. The police are not allowed to go in search of possible sinners, who can only be caught red-handed, and not behind the “veil of decency” of their closed doors ... The generally tolerant attitude toward homosexual practice can partly be explained by the fact that it will usually take place discreetly. Moreover it does not have serious personal consequences such as for example, heterosexual adultery would have. ...
According to the representative of the Swedish Amnesty Group for Gay and Lesbian Concerns ... who is also an activist working with the International Gay and Lesbian Association ... none of the few known executions of homosexuals and lesbians in Iran were carried out on the sole basis of homosexuality. ...
In its 1996 report the Embassy of Sweden states that:
The strict regulations for submission of evidence, four male witnesses to the homosexual penetration, alternatively four confessions from each of the active partners, renders a sentence for homosexuality almost impossible in practice. The police and justice administration do not take active measures to investigate the existence of homosexuality, nor do they actively hunt homosexuals. All in all, the situation in practice in Iran is drastically different from the impression conveyed by the Shari’a inspired penal code. According to the information from usually very reliable sources, no homosexuals have been executed in Iran for the last few years. In order to risk policiary sanctions – maltreatment or a short time in custody/jail, regardless of the fact that the penalty according to the law is death or whipping - a homosexual couple must behave with great indiscretion, almost provocatively, in a public place.
According to a sociologist specializing on Iran and chargée de conferences at the Sorbonne-Nouvelle (Paris-III), the law stipulates that people engaging in sexual relations with a person of the same sex ... would only be put on trial if the prosecution can produce four righteous men who witnessed the sexual act, or one of the partners admits to having sexual relations with another man ... If there are fewer than four men to testify to the homosexuality of a person, the accusation of homosexual activities cannot be proven. The sociologist stated that it would be suicidal to ‘admit one’s homosexuality’ and added that such an admission is implausible. In practice, the burden of proof lies so heavily on the prosecution that ... a homosexual will very rarely be tried or sentenced. The sociologist has never come across any case that went to trial and stated there are many more stonings for heterosexual relations prior to marriage and for adultery than for homosexuality.
Another sociologist ... at the Université de Paris stated ... that legislative repression is not directed against ‘homosexuals’ but against heterosexual relations outside marriage. Repressing ‘homosexual activities’ is rare for the security forces because of the difficulty of identifying who is ‘homosexual’ and who is not since Iranian men have very close physical contact (holding hands and kissing) which is socially acceptable behaviour in Iran. It is very rare that a person would be arrested for ‘homosexuality’ but if a person were arrested and convicted as a homosexual the punishment would be harsh.
According to another sociologist and a researcher on Iran with the CNRS, although Muslim and Iranian laws punish ‘homosexuality’ by death, in practice, it rarely happens, except in the cases of pedophilia ... ‘Homosexuality’ is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity. It would be repressed only when made public and asserted, an implausible occurrence in Iran.
A 2 February 1998 letter from the Director of the Iran Desk at the Alien Appeals Board of Sweden in Stockholm states that:
Furthermore it is not known that Iranian authorities are actively taking legal actions against homosexuals. It is most unlikely that the authorities would take proceedings against a homosexual as long as he does not manifest his disposition in an open and public manner. As far as the Alien Appeals Board knows not anyone has been prosecuted on homosexuality charges alone in Iran for the past seven to eight years.
There are many indications that there is a significant difference between the legal texts and the practice of the security forces.
As far as the behaviour of homosexual persons can be taken as a relevant indication about the degree of oppression of homosexuals, the impression is rather that the situation in Iran is relatively tolerant, since homosexuality is by no means unusual in Iran. Certain ‘health clubs’ in Tehran are for example known to be frequented by homosexuals. Furthermore, it is by no means unusual to meet openly homosexual persons –under otherwise heterosexual private circumstances like social events.
... There is a park in central Teheran called Daneshju (student) that is famous and well-known as a place where men who are looking for sexual relationships with other men meet. The sociologist added that the public and the security forces are aware of the park’s reputation ...”

A Danish fact-finding mission to Iran in September 2000 reported:
“5.5 Homosexuals
During their visit to Teheran, the delegation had an opportunity to discuss the situation for homosexuals in Iran with several of their contacts.
... A Western embassy said that it had never heard of cases relating solely to homosexuality. According to the same source, however, a man who had been charged with 15 counts of indecent behaviour had been executed the week before ... He had also been found guilty of raping a 12 year old boy in his shop.
According to a Western source familiar with the homosexual scene in Tehran, it had never heard of cases being brought against homosexuals. The source thought that the homosexual community would be aware of any cases being brought against persons solely on the grounds of their homosexuality.
A source connected with a Western news agency thought that any cases brought against homosexuals would not be brought to public attention. In view of that fact, the source could not rule out the possibility that there might be cases where the charge relates to homosexuality. In that connection the source referred to a case in a military prison where a prisoner let slip to a warder about a homosexual relationship he had had. The prisoner was subsequently sentenced to 100 lashes.
According to a government source, homosexuals do not experience any problems in Iranian society; in other words, few cases relating to homosexuality have been brought before the courts.
However, according to a source with good knowledge of the Iranian judicial system, many cases concerning homosexuality have been brought before the Iranian courts. The source was unable to provide further details of the cases in question. With regard to sentences passed in such cases, the source could say only that the death penalty had been pronounced in several. The source added that if a case was not fully substantiated, it was for the judge to decide on the punishment.
When the delegation asked why such cases were brought, the source replied that this was because one of the parties involved in the homosexual relationship had contacted the courts.
According to a government source, a person cannot accuse himself. With regard to homosexuality, this means that – in his opinion – if an Iranian citizen reveals himself as a homosexual in a Danish newspaper, nothing will happen to that person when he returns to Iran.
Several Western sources, including one embassy, said independently that homosexuals do not face problems in Iran today. There are places where homosexuals meet ...”
In this case, the Committee rejected the complaints of the complainant who complained that the Netherlands were proposing to expel him to Iran where as a homosexual he claimed that he had previously been detained and tortured for his homosexuality and would face further risk of torture. It noted the contradictions and inconsistencies in his account and also “from different and reliable sources that there is currently no active policy of prosecution of charges of homosexuality in Iran”. It accordingly found that it had not been given enough evidence to conclude that the complainant would run a personal, present and foreseeable risk of being tortured if returned to his country of origin.


ITEMID: 001-71345
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SASMAZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 4. On 29 August 1995 the General Directorate of National Roads and Highways (General Directorate) expropriated plots of land belonging to the applicants in Mersin in order to build a motorway. A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place.
5. Following the applicants’ requests for increased compensation, on 26 November 1996, the Mersin Civil Court of First-instance awarded them additional compensation of 290,000,000 Turkish Liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 29 August 1995, the date of the transfer of the title-deeds.
6. On 1 June 1998 the Court of Cassation upheld the judgment of the first-instance court.
7. On 16 May 2000 the General Directorate of National Roads and Highways paid the applicants TRL 973,920,000 (approximately 1,739 euros (EUR)), including interest.
8. The relevant domestic law and practice are set out in Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


ITEMID: 001-60554
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF WILSON, NATIONAL UNION OF JOURNALISTS AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 10;Not necessary to examine Art. 14+10 or 14+11;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Gaukur Jörundsson;Nicolas Bratza;Phillips of Worth Matravers
TEXT: 9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.
10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail:
“Dear Dave,
You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.
Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.
A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.
Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.
All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.
I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.
I think you should know that the initiative to end collective bargaining has come from the editors, not the management.
It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.
The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.
Yours sincerely,
...”
11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.
12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.
13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.
14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:
“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.
You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.
Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.
If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.
As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.
This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–
Allowances, e.g. Height, tool, allowances, etc.,
Holiday bonus and higher grade duty payments.
These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.
Overtime will be offered as and when necessary. There will be no contractual overtime.
Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).
If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...
The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”
The average pay increase offered to manual grade employees who accepted personal contracts was 10%.
15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.
16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.
17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.
18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.
19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.
20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).
21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.
22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97).
In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.
In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.
23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.
24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed.
25. According to United Kingdom law, a “trade union” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers' associations as one of its principal purposes (section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 – “the 1992 Act”). There is no system of licensing trade unions prior to their recognition for collective bargaining.
26. At the time of the events in question in this case, collective bargaining was a wholly voluntary process. There was no legislation in the United Kingdom which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining (the Employment Act 1980, repealing the Employment Protection Act 1975).
27. Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 provided:
“23(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of
(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.”
This provision was re-enacted as section 146(1) of the 1992 Act.
28. After the Court of Appeal found for the applicants, Parliament enacted section 13 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”) to amend section 148 of the 1992 Act by providing that where “the employer's purpose was to further a change in his relationship with all or any class of his employees” then, unless the employer's action was action that no reasonable employer could take, section 146(1) of the 1992 Act would provide no remedy for the employee.
29. Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned, section 219 of the 1992 Act confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute” (as defined; see UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I).
30. Article 5 of the Social Charter provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
31. Article 6 of the Charter is headed “The right to bargain collectively” and provides:
“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:
(1) to promote joint consultation between workers and employers;
(2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
(3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108):
“... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269).”
33. In its next report the Committee again insisted “that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia]”, commenting (Conclusions XIV-I, 1998, pp. 798 and 800):
“The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ...”
34. The United Kingdom has ratified the International Labour Organisation's (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98).
35. Convention no. 87 provides, inter alia:
“Part I. Freedom of Association
Article 1
Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.
Article 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
Article 10
In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.
Part II. Protection of the Right to Organise
Article 11
Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”
36. Convention no. 98 provides, inter alia:
“Article 1
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect of acts calculated to –
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
Article 3
Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.
Article 4
Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”
37. The ILO Committee on Freedom of Association has considered section 13 of the 1993 Act in the context of a case of alleged intimidation intended to bring about the de-recognition of two trade unions at a steel works in England, and the absence of any remedy under national law (Case no. 1852, 309th Report of the Freedom of Association Committee, Vol. LXXXI, 1998, Series B, no. 1). The Committee concluded as follows (paragraphs 337 and 341):
“337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 845 and 824). While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, [the employer] has by-passed the representative organisation and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.
341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the [1993 Act], the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights (see 294th Report, Case no. 1730) wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention no. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal (see 294th Report, Case no. 1730, para. 199). The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.”
The Committee recommended, inter alia, (and its recommendations were approved by the ILO's Governing Body):
“(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.
...
(e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.”
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