ITEMID: 001-22347
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: P.W. v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, P.W., is a Swiss national who was born in 1926 and lives in Therwil in Switzerland. He is represented before the Court by Mr B. Gelzer, a lawyer practising in Basel.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant worked in Basel as a real property administrator in the C. company. In 1987 he was given notice as he had allegedly appropriated payments for repairs which had not been undertaken.
Criminal proceedings were instituted against the applicant on account of professional fraud. Upon appeal, the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt on 31 March 1995 sentenced the applicant to three years’ imprisonment. The court was composed of three judges and assisted by court registrar W.
Meanwhile, in 1987 the applicant brought an action before the Basel Commercial Arbitration Court against the C. company, claiming 8,000 Swiss francs (CHF), inter alia, for outstanding salary claims. In 1988 the defendant company brought a counter-action against the applicant, claiming CHF 592,864. Proceedings were then continued before the Civil Court (Zivilgericht) of the Canton of Basel-Stadt which on 5 December 1988 suspended the proceedings in view of the criminal proceedings instituted against the applicant.
Proceedings were resumed in 1993. The defendant company brought a further counter-action against the applicant, now claiming CHF 4,170,644 for damages caused by fictitious bills.
As from 1 January 1994 onwards, judge R., the President of the Civil Court, acted in the applicant’s case as the judge responsible for the preparation of cases for trial (Instruktionsrichter).
On 30 May 1994 the applicant extended his claims to CHF 73,685. He also requested free legal aid.
On 21 July 1994 judge R. authorised the amendments of the action and counter-action. In order to examine the applicant’s request for free legal aid, he obtained copies of judgments from the competent courts which had conducted the criminal proceedings and had refused the applicant free legal aid. On 30 November 1994 judge R. refused the applicant’s request for legal aid as he had not demonstrated his indigence.
On 27 January 1995 judge R. fixed 31 May 1995 as the time-limit for filing replies to the action and counter-action. On 20 November 1995 the defendant company filed further submissions, accompanied by photocopies of certain documents. As the applicant contested their authenticity, judge R. requested the defendant company to submit the original documents.
On 18 April 1996 the applicant amended his action and requested, in addition, CHF 184,000 from the defendant company. As a result, judge R. instructed the applicant to pay advance costs of CHF 6,000. The applicant replied that he was unable to pay this sum whereupon judge R. declared the amendment to the action inadmissible (aus dem Recht gewiesen).
On 24 March 1997 both the applicant and the defendant company filed further submissions.
On 30 July 1997 judge R. closed the exchange of statements and ordered the documents of the criminal proceedings to be included in the case-file.
On 31 December 1997 judge R. terminated his functions at the Civil Court and became a judge at the Court of Appeal of the Canton of Basel-Stadt. Thereafter, judge M. undertook the functions in the applicant’s case before the Civil Court as judge responsible for the preparation of cases for trial.
On 3 June 1998 a hearing took place before the Civil Court at which both parties were present. In its judgment of 9 September 1998 the court ordered the applicant to pay CHF 38,789 to the defendant company, while formally taking note that the latter accepted the applicant’s action to the extent of CHF 11,210. It imposed the costs of the court proceedings concerning the action, amounting to CHF 3,630, on the applicant, who was furthermore ordered to pay 25% of the costs of the counter-action, amounting altogether to CHF 75,490.
The applicant appealed against the judgment in respect of the imposition of costs, claiming that the defendant company should pay the entire costs of the counter-action, and 15% of the costs of his action. On 10 March 1999 the Court of Appeal of the Canton of Basel-Stadt dismissed the appeal. It transpires from the judgment that the bench was composed of four judges, among them judge R., as well as the court registrar W.
The applicant’s public law appeal (staatsrechtliche Beschwerde) was dismissed by the Federal Court on 16 July 1999. Insofar as the applicant complained of the lack of impartiality of judge R. and court registrar W., the Federal Court stated:
“According to the submissions of the Court of Appeal ... R. had acted, in the case at issue, as judge responsible for preparing cases for trial between 1 January 1994 and 31 December 1997. During this period of time he examined the applicant’s requests for free legal aid; imposed advance court costs; dealt with requests concerning amendments of the action and the counter-action; fixed time-limits for the exchange of statements; and decided on requests for the transmittal of files, including those of the criminal proceedings. On 31 December 1997, when a new judge took over these functions, the preparation of the case for trial was not yet completed. In particular, the successor had to decide on the taking of evidence requested; to prepare the trial; and to participate in the decision. As a result, while R., as the first instance judge responsible for the proceedings, took all decisions necessary for the progress of the proceedings and for the preparation of the judgment, at no moment was he obliged to express himself on the admissibility or the merits of the legal requests stated in the action or the counter-action ...
The participation of R. also does not raise an issue under ... Article 6 § 1 of the Convention. It has not been made clear why the procedure in second instance – despite the participation of R. – could no longer be described as open and undetermined in respect of the legal questions to be resolved, a fortiori as the judgment of the lower court was only contested in respect of the costs. When acting as judge responsible for preparing cases for trial, R. did not have to deal with the issue of attributing the costs of the proceedings. He therefore appears as an impartial judge in this respect. This conclusion is not altered by the fact that R. obtained knowledge of certain aspects playing a rôle in respect of the question whether or not the defendant company had instituted proceedings in good faith. ...
The complaint of a breach of the Swiss Constitution and the Convention is equally unfounded insofar as court registrar W. collaborated in the second instance criminal and civil proceedings. In view of the criteria previously referred to, no partiality can objectively be made out if a court registrar participates in the decision-making in two proceedings with different contentious objects. It plays no part here that in both proceedings similar partial questions – albeit from a completely different vantage point - may have arisen.”


ITEMID: 001-68504
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GUMUS AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1 with regard to the lack of independence and impartiality;Not necessary to examine other complaints under Art. 6;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The first applicant, Mr Fethi Gümüş, is a Turkish citizen, born in 1947 and living in Diyarbakır. He is a lawyer practising in Diyarbakır. The second applicant, Mr Ali Öncü, is a Turkish citizen, born in 1960 and living in Diyarbakır. He is a member of the TESİŞ Workers’ Union (TESİŞ Sendikası). The third applicant, Ms Sevtap Yokuş, is a Turkish citizen, born in 1966 and living in Kocaeli. She is a lecturer at the Law Faculty of Kocaeli University. The fourth applicant, Mr Sabahattin Acar, is a Turkish citizen, born in 1964 and living in Diyarbakır. He is a lawyer practising in Diyarbakır. The fifth applicant, Mr Vezir Perişan, is a Turkish citizen, born in 1951 and living in Diyarbakır. He is a member of the Municipal Workers’ Union (Belediye-İş Sendikası).
5. The edition dated 24 March 1992 of the newspaper “Diyarbakır Söz” and the edition dated 25 March 1992 of the newspaper “Felak” carried a press statement drafted by a delegation which included the applicants, two former Turkish parliamentarians, Leyla Zana and Hatip Dicle, and twenty representatives of various political parties and democratic public organisations.
The press statement which appeared in the newspapers read as follows:
“The Kurdish nation has enhanced its honourable struggle for its claim to the right to a humane existence. The State, which is a party to the problem, has suddenly carried its war mechanism to the region so as to suppress this legitimate struggle by violence.
The 21st March, the day of the Nevroz festival, was declared to the press as the official starting date of the large-scale operation by the President, the Chief of Staff and the Under Secretary of the National Intelligence Service. The covert war in Şırnak, Cizre and Nusaybin came to light with the images of tanks, armoured carriers and helicopters shown on television. After the mountains, which have been under bombardment since January, it is now the civilian population which is being bombed.
The civilians who celebrated Nevroz in Cizre, Nusaybin, Şırnak and other places where incidents occurred, did not attack or open fire on security forces. That no members of security forces had been killed by gunfire during the Nevroz celebrations was confirmed by official declarations.
For the time being, the consequences of the war are 53 dead, hundreds of wounded, dozens of disappeared persons, thousands of detentions, burials in collective graves reminiscent of genocide and bombed, destroyed and burnt-down houses.
The security forces lack humane and judicial values. During the incidents, the transport of the injured was hindered, the vehicles carrying injured people were fired on, the health professionals and the relatives of the wounded who tried to help were threatened. Journalists, who tried to observe the incidents, were not allowed to enter the settlement units. They were also threatened, harassed and killed.
The Government cannot control the State. Laws are not respected in the region. The Laws on War to which the State is a party do not apply to this war. The conditions for the application of the 1949 Geneva Conventions exist. We invite the parties to this war to conform to the provisions of the Geneva Conventions.
We invite the public not to be onlookers to the massacre but to act in solidarity with the Kurdish People who are exposed to massacre and whose rights are violated.”
6. On 19 June 1992 the public prosecutor at the Diyarbakır State Security Court initiated criminal proceedings against the applicants and sixteen other individuals who had signed the press statement. Citing the text of the press statement, the public prosecutor charged them with incitement to hatred and hostility by making distinctions between persons on the basis of ethnic origin. The public prosecutor requested the Diyarbakır State Security Court to apply Articles 312 §§ 2 and 3 of the Criminal Code and Article 5 of the Prevention of Terrorism Act 1991.
7. The public prosecutor submitted his observations during the proceedings and requested the court to sever the case of Mr Hüseyin Turhallı from the others, to acquit N.Y., T.K. and S.K., and to apply Article 312 § 2 and Article 5 of the Prevention of Terrorism Act 1991 to the remaining accused persons.
8. In the proceedings before the Diyarbakır State Security Court, the applicants and the other co-accused did not deny that they had drafted the press statement. However, they claimed that the statement was not the same in content as the one which had been published in the newspapers and which formed the basis of the charges against them. They submitted that the public prosecutor had relied on another press statement drafted by the parliamentarians, Mr Hatip Dicle and Mrs Leyla Zana. They also maintained that their press statement had not been included in the case file and, accordingly, they could not be convicted on the basis of the content of their own press statement.
9. On 20 February 1995 the State Security Court, composed of three judges including a military judge, accepted the applicants’ defence as well as that of their co-accused. They were all acquitted of the charges.
10. On 21 February 1995 the public prosecutor appealed to the Court of Cassation which, on 19 May 1995, upheld the acquittal of N.Y., T.K. and S.K., but quashed the acquittal of the applicants and other co-accused. The case was remitted to the Diyarbakır State Security Court.
11. On 24 February 1997 the Diyarbakır State Security Court convicted the applicants and seven of their co-accused of incitement to hatred on the basis of a distinction between regions under Article 312 of the Criminal Code. The court first sentenced them to one year and eight months’ imprisonment and a fine of TRL 100,000. The court noted that the press statement in question was a summary of the declaration which the accused had drafted. However, having regard to the fact that the applicants and their co-accused had no previous convictions and to their good conduct during the trial, the court suspended their sentences.
12. The applicants and their co-accused appealed against their conviction. On 8 October 1997 the Court of Cassation dismissed their appeal. It upheld the Diyarbakır State Security Court’s assessment of the evidence and its reasons for dismissing the applicants’ defence.
13. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Karkın v. Turkey (no. 43928/98, §§ 17 and 19, 23 September 2003), Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), Özdemir v. Turkey, no. 59659/00, §§ 21-22, 6 February 2003 and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95861
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PEŠKOVÁ v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. In 1979 the applicant purchased a one-third share in certain real estate in Neštěnice which had been donated to the State by the original owners in 1966. The purchase price of 25,326 Czech korunas (CZK) (950 euros (EUR)) for the whole property was fixed by an expert in September 1978.
6. At the time the application was lodged the property was being used by the applicant's daughter and her family.
7. On 25 August 1992, after the entry into force of Act no. 229/1991 (“the Land Ownership Act”), a certain M. instituted restitution proceedings in the Benešov District Court (okresní soud) against five co-owners, including the applicant, seeking recovery of the property in issue by virtue of section 8 (1) of the Land Ownership Act. M. alleged that the acquisition of the property by the applicant and the other co-owners had been vitiated by a breach of the regulations in force at the time, that they had enjoyed an unlawful advantage, and that the price they had been required to pay had been lower than the real value of the property.
8. On 29 September 2000, after the case had been examined by the courts at three levels of jurisdiction between 1995 and 2000, the District Court ruled against the applicant and the other co-owners and transferred the title to the property to P., the daughter of the original plaintiff who had died in the meantime. In the course of the proceedings, several expert reports assessing the value of the disputed property at the time of its acquisition by the applicant had been produced at the request of the District Court: an expert report valuating the property at CZK 31,012 (EUR 1,165), an audit report by a company, S., fixing the price at CZK 29,889 (EUR 1,123) and an amendment to the audit report setting the price at CZK 69,347 (EUR 2,606). It emerged from this amendment that when valuing the property the earlier reports had been based on the correct price regulation but certain interpretative directives (směrnice a pokyny) issued by the Ministry of Finance had been disregarded. The court found on the one hand that the defendants had acquired the property at a lower price than that required by the law in force at the material time. On the other hand, the plaintiff had failed to establish that they had enjoyed an unlawful advantage when acquiring the property, in that the father of one of them was a member of the communist party.
9. On 11 April 2001 the Prague Regional Court (krajský soud) upheld the judgment of the first-instance court. It accepted the conclusions set out in the amendment to the audit report, as the reasons for the difference in prices had been satisfactorily explained. Thus, it considered a new audit, as suggested by the applicant, to be superfluous. The Regional Court's judgment became final on 8 August 2001.
10. On 24 September 2002 the Supreme Court (Nejvyšší soud), without holding a public hearing, dismissed the applicant's appeal on points of law (dovolání) of 20 August 2001, stating, inter alia, as follows:
“The court of cassation finds well-founded [the applicant's] arguments challenging the legal conclusions of the audit report. ... There was no reason to apply ... the particular provision of section 12 (2) of the Price Regulations, which only concerned expropriation and was intended to protect persons from whom real estate was taken ...
Despite this interpretation ..., the court of cassation could not grant the applicant's request to quash as incorrect the judgment of the appellate court. Even if the wear and tear [to the property] had not been calculated at 70%, as applied by the amendment to the audit report, but at 80%, as applied in the previous expert reports, the price ... fixed under the Price Regulations would have been higher than the purchase price agreed between the parties ... The difference in the prices is thus not based on the subjective valuation of the expert or his interpretation of the Price Regulations, but also on the smaller surface area considered by the original expert ... [as well as] the wrong classification of the construction ... In these circumstances, the finding of the appellate court that the defendants had acquired the disputed property at a price lower than that established by the Price Regulations is correct ...”.
11. On 28 January 2003 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal by the applicant (ústavní stížnost) in which she alleged, in particular, a violation of Articles 11 (right to property) and 36 § 1 (right to judicial protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
12. In December 2004 the applicant was reimbursed by the Ministry of Agriculture her share of the purchase price of the property, corresponding to CZK 6,493 (EUR 244). Moreover, the Ministry proposed the applicant and the other co-owners a sum of CZK 554,421 (EUR 20,833) in compensation for the costs reasonably incurred for the upkeep of the property. That sum was fixed by an expert and the applicant was ready to accept it. However, due to an objection by P., the new owner of the property, against whom the Ministry of Agriculture would have had a counterclaim, that sum was not paid out. In a letter of 4 November 2005, the Ministry of Justice advised the applicant to seek that compensation by means of a civil action against the Ministry. The applicant failed to do so however.
13. In an expert report produced for the purposes of inheritance proceedings after the applicant's father (one of the co-owners) had died on 23 November 2000, the disputed property was valued at CZK 1,779,580 (EUR 66,868). According to a resolution of the Prague 4 District Court of 28 August 2001, the one-third share left by the deceased was acquired by the applicant. The resolution became final on 13 October 2001.
14. In a letter of 11 December 2006 the Ministry of Justice informed the applicant that it had found that her right to a determination of her civil claim within a reasonable time had been violated and that she had been awarded CZK 67,500 (EUR 2,536) in non-pecuniary damages for the length of the restitution proceedings. In a letter of 20 February 2007 the applicant informed the Court that she did not wish to pursue her claim before the domestic courts.
15. The relevant domestic law and practice in matter of restitution are set out in the Court's judgment Zvolský and Zvolská v. the Czech Republic (no. 46129/99, § 25, ECHR 2002IX). The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings are set out in the Court's decision in the case of Vokurka v. the Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).
16. Under section 243a of the Code of Civil Procedure, the court of cassation decides on an appeal on points of law without holding a hearing. The court holds a hearing if it considers it appropriate or if it has to review evidence.


ITEMID: 001-80360
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KRISTJANSSON AND BOASSON v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr Johann Sigurdur Kristjansson and Mr Boas Kristinn Boasson, are both Icelandic nationals and were born in 1960 and 1961, respectively. They were represented before the Court by Mr Fridbjörn Gardarsson, a lawyer practising in Egilsstadir, Iceland.
s, may be summarised as follows.
On 30 October 2003 the Eastern Iceland District Court convicted them of unlawful hunting and sentenced them to pay a fine of ISK 50,000 (approximately EUR 600) each and ordered the suspension of their hunting licences for one year and the confiscation, for one year, of their rifles, as well as their prey consisting of 15 mountain grouse.
On 18 December 2003 the Supreme Court refused them leave to appeal, which decision was notified to their lawyer on 9 February 2004.
According to the applicants, under Icelandic law (Chapter 18 of the Code of Criminal Procedure (Act No. 19/1991)), if an appellant has not been sentenced to imprisonment at first instance or if the fine imposed or the value of the goods confiscated by the latter did not exceed ISK 420,000 (at the time of the filing of the application, corresponding approximately to EUR 5,250), an appellant wishing to challenge the first instance ruling has to obtain leave to appeal from the Supreme Court.


ITEMID: 001-85532
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GAYVORONSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 5. The applicant was born in 1946 and lives in Kaliningrad.
6. On 19 March 1997 the applicant was convicted of assault and battery and sentenced to one year’s imprisonment.
7. On 29 March 1999 the Kaliningrad Regional Court quashed the judgment of 19 March 1997 on supervisory review and discontinued the criminal case against the applicant for the lack of corpus delicti in his actions.
8. On 11 October 2000 the Tsentralniy District Court of Kaliningrad awarded the applicant 10,000 Russian roubles (RUB) against the Ministry of Finance in compensation for the non-pecuniary damage sustained as a result of wrongful conviction and unlawful detention. It also ordered that the Ministry of Finance reimburse the legal fee paid by the applicant in the amount of RUB 500.
9. On 27 December 2000 the Kaliningrad Regional Court increased the award to RUB 20,000.
10. On 26 March 2001 the Presidium of the Kaliningrad Regional Court, acting on supervisory review, increased the award to RUB 50,500. The judgment became enforceable on the same day. On 9 August 2001 the court issued a writ of execution.
11. On 17 October 2001 the applicant submitted the writ of execution to the local office of the Ministry of Finance which forwarded the writ to the central office of the Ministry of Finance. The Ministry of Finance received it on 30 October 2001.
12. On 6 June 2002 the Ministry of Finance returned the writ to the applicant because he had not indicated his bank details and had not submitted a certified copy of the judgment of 26 March 2001.
13. On 27 July 2002 the applicant resubmitted the writ to the Ministry of Finance. On 17 September 2002 the Ministry returned the writ to the applicant for the same reasons as before.
14. On 26 September 2002 the applicant submitted the writ to the local bailiffs’ service. On 17 October 2002 the bailiffs forwarded the writ to the Moscow bailiffs’ service. On 1 January 2003 the Moscow bailiffs’ service returned the writ to the applicant and advised him to submit it to the Ministry of Finance.
15. On 9 January 2003 the applicant for a third time submitted the writ to the Ministry of Finance.
16. The applicant received the award on 20 March 2003.
17. On 24 September 2001 the Leningradskiy District Court awarded the applicant RUB 60,753 against the Ministry of Finance as compensation for the loss of salary during his detention, plus reimbursement of the legal fees. The judgment became enforceable ten days later.
18. On 17 October 2001 the applicant submitted the writ of execution to the local office of the Ministry of Finance which forwarded it to the Ministry of Finance.
19. On 31 January 2002 the Leningradskiy District Court issued a duplicate writ and sent it to the local bailiffs’ service. On 10 September 2002 the bailiffs opened enforcement proceedings.
20. On 16 October 2002 the bailiffs forwarded the writ to the Moscow bailiffs’ service.
21. By letter of 23 May 2003, the Moscow bailiffs’ service informed the applicant that the writ had been returned to the Leningradskiy District Court on 28 November 2002 for corrections in the debtor’s name and address.
22. On 30 May 2003 the applicant asked the Leningradskiy District Court to issue a duplicate writ of execution. The court issued a duplicate writ on 21 July 2003.
23. On 31 July 2003 the applicant submitted the writ to the Ministry of Finance.
24. The applicant received the award on 17 November 2003.
25. On 19 June 2003 the Tsentralniy District Court of Kaliningrad awarded the applicant RUB 17,018 against the Ministry of Finance in respect of inflation losses sustained as a result of the belated enforcement of the judgment of 26 March 2001. The judgment became enforceable ten days later.
26. On 5 August 2003 the applicant submitted the writ of execution to the Ministry of Finance.
27. The applicant received the award on 3 May 2005.
28. On 19 August 2004 the Tsentralniy District Court awarded the applicant RUB 1,200 against the Ministry of Finance in respect of non-pecuniary damage sustained as a result of the belated enforcement of the judgment of 26 March 2001.
29. On 10 February 2005 the applicant submitted the writ of execution to the Ministry of Finance.
30. The applicant received the award on 15 September 2006.
31. The applicant sued the Ministry of Finance for compensation for the loss of profit during his detention. On 19 June 2001 the Tsentralniy District Court dismissed his claims as unsubstantiated. On 25 July 2001 the Kalinigrad Regional Court upheld the judgment on appeal.
32. The applicant sued the Ministry of Finance for the loss of income during his detention. On 24 January 2002 the Tsentralniy District Court dismissed his claim as unsubstantiated. On 27 February 2002 the Kaliningrad Regional Court upheld the judgment on appeal.
33. In 2002 the applicant brought two court proceedings against the bailiffs’ service. On 31 July 2002 and 14 August 2002 the Kaliningrad Regional Court dismissed the applicant’ claims in the final instance.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58018
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GREGORY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 14+6
JUDGES: John Freeland;N. Valticos
TEXT: 7. The applicant, who is black, is a British citizen born in 1966 and currently living in Manchester, England.
8. The applicant was tried for robbery at Manchester Crown Court between 26 and 28 November 1991. He was legally represented at the trial.
9. On the final day of the trial, at 10.46 a.m., the jury retired to consider their verdict. An hour and three quarters later a note was passed by the jury to the judge. It read:
"JURY SHOWING RACIAL OVERTONES. 1 MEMBER TO BE EXCUSED."
10. In the absence of the jury, the trial judge showed the note to counsel for the prosecution and defence and consulted them on the appropriate response to it.
11. There is some uncertainty as to the stance taken by defence counsel with regard to the follow-up to be given to the note. Prosecution counsel recalls that defence counsel did not raise strong objections to the approach which the judge indicated he intended to pursue, namely to recall the jury and give clear directions on their duty to return a verdict on the basis of the evidence alone. However, defence counsel seems to recall that he did in fact ask the trial judge to discharge the jury in the circumstances, but his application was refused. Defence counsel based his recollection on the grounds of appeal and advice on appeal which he drafted shortly after the trial on 10 December 1991. However, neither of these documents suggests that defence counsel made an express request to the judge to discharge the jury. Under point 4 of his grounds of appeal, defence counsel concluded:
"It is submitted that, in the circumstances aforesaid, some enquiries should have taken place with a view to acceding to the request of the jury that one of their numbers be discharged."
In the accompanying advice on appeal, defence counsel stated:
"It seems to me that it is at least arguable that the trial judge should have enquired further into the matter with a view to acceding to the request that the jury were making."
12. The judge’s recollection is that both counsel agreed to his proposed course of action (see paragraph 11 above).
13. The jury were recalled at 12.47 p.m. Pausing at appropriate junctures to ensure that his statement was being understood, the judge redirected the jury in the following terms:
"You are brought here as twelve people from your various walks of life, your various backgrounds. Everybody has preconceived ideas and thoughts but you are brought here from twelve different backgrounds expecting to apply your twelve different minds to the problems that are put before you ... you decide this case according to the evidence and nothing else in the case. Any thoughts or prejudice of one form or another, for or against anybody, must be put out of your minds. You decide this case on evidence. It is the evidence alone which decides the case. Do you understand that, members of the jury? You are the judges and you decide it on the evidence, and weighing the individuals as you saw them and allowing no other factor to influence your decision, but your decision about the quality of the evidence and the way in which a particular individual you are considering, treating them all alike and making no distinction whether a person is a defendant or otherwise, where he lives, where he comes from. Do you understand that? I am certainly not going to discharge any member of the jury because he or she may wish [me] to do so because they dislike certain overtones in the conversation. Decide this case according to the evidence. Members of the jury, I am not saying you should be biased in favour or against it. Look at the way it was given. Decide the case that way and no other. That is your sworn duty. I expect you to abide by your sworn duty."
14. The jury then retired at 12.50 p.m. At 2.21 p.m. the jury, being unable to reach a unanimous verdict, were recalled by the judge. He informed them that the time had come when he could accept a verdict of at least a majority of ten. The jury retired again at 2.24 p.m. At 3.27 p.m. the jury were still undecided and they were called back again. The judge further directed the jury as follows:
"Members of the jury, each of you has taken an oath to reach a true verdict according to the evidence. Remember that is the oath you took two days ago. Not one of you must be false to that oath. You do have a duty, not only as individuals but collectively as a jury. That, of course, is the strength of the jury system. So each of you when you go into your jury room take with you your individual experience and wisdom ... Your task is to pool that experience and wisdom. You must do that by giving your views and listening to the views of other people. Of necessity there will be discussion ... There has got to be argument and there has got to be give and take within the scope of the oath that each of you has taken. That is the way you achieve agreement."
15. At 4.06 p.m. the jury returned and delivered a ten to two majority verdict finding the applicant guilty. The applicant was sentenced to six years’ imprisonment.
16. The applicant sought leave from the Court of Appeal to appeal against conviction. He submitted that in the circumstances the trial judge had wrongly failed to make any enquiry into the note with a view to determining whether one of the members of the jury should be discharged on the grounds of racial prejudice and that this failure gave rise to a material irregularity at the trial (see paragraph 11 above). Leave to appeal was refused by the single judge on 28 February 1992. He stated that:
"The learned judge dealt with the novel and delicate situation presented by the jury note with tact and sensitivity. It would have been entirely inappropriate for him to have conducted some sort of enquiry. There was no material irregularity at your trial."
17. The applicant renewed his application to the full Court of Appeal. On 19 January 1993 the application was dismissed. The Court of Appeal noted that the trial judge
"... took the view and this Court agrees with it, that the nature of the jury’s anxiety was that one member of the jury felt that there was a general overtone of racial comment which was unacceptable and not, as the applicant is suggesting, one member of the jury being so racially prejudiced as to be unable to give proper consideration to the matters before him".
The court continued:
"Matters of this kind raise delicate issues. The jury system does require an element of give and take after proper directions from the judge. In our judgment His Honour Judge Hammond dealt with this matter sensitively, sensibly and correctly, and cannot be faulted for a conclusion that the jury should continue the deliberations which they had given their oath to undertake. We, therefore, find no ground for complaint and we dismiss this application."
18. The trial judge is the arbiter of issues of law. He must ensure that the trial is properly conducted according to law. He is required at the end of a trial, inter alia, to sum up the evidence, to direct the jury to disregard evidence which is inadmissible, to remind juries of their duties and functions, to explain any law which the jury is required to apply, to direct the jury on the onus and burden of proof and to ask the jury to reach a verdict on the evidence they have heard.
19. The jury in Crown Court trials consists of twelve members who have taken an oath or affirmed to "faithfully try the defendant and give a true verdict according to the evidence". The jury is the arbiter of fact.
20. Jury service is regarded as an important civic duty. The Juries Act 1974, as amended, governs qualification for jury service, ineligibility, disqualification, excusal, discharge and other relevant matters.
21. Every person between 18 and 70 who satisfies the requirements set out in section 1 of the Juries Act 1974 is qualified to serve on a jury and liable to do so if summoned under section 2 of that Act. The electoral register serves as the basis of jury selection.
22. Random selection of potential jurors is regarded as a key safeguard against corruption or bias in a sworn jury. There are a number of other guarantees, including:
23. It is lawful for enquiries to be made as to whether potential jurors are disqualified by reason of previous convictions. For this purpose a search may be made of criminal records in order to ascertain whether or not a jury panel includes a disqualified person. Furthermore, in cases involving national security or terrorism additional steps may be taken to test the integrity of a potential juror. The Attorney-General has laid down guidelines on the conduct of jury checks.
24. On the trial of an indictment, and before the jurors are sworn, the accused and the prosecution may object to the jurors who are called to serve. Challenges are of two kinds: (1) "to the array", that is to say to the whole number of persons in the panel, and (2) "to the polls", that is to say to individual jurors.
25. Challenges to the polls must be for cause. The Juries Act 1974 specifies the causes for challenge including the presumed or actual partiality of a potential juror. Any challenge for cause must be decided by the judge before whom the accused is to be tried. The challenging party must provide prima facie evidence of good cause for this purpose. If the challenge for cause is allowed, the juror is ordered to stand down and a fresh juror is called. Challenges for cause are unlimited.
26. The prosecution alone are entitled to require a juror "to stand by" in which case he returns to the panel from which jurors are selected. The Attorney-General issued Guidelines in November 1988 on the exercise of the prosecution’s right to ask jurors to stand by. The Guidelines indicate, inter alia, that the right should be asserted only on the basis of clearly defined and restrictive criteria.
27. In certain types of criminal proceedings it is also the practice for the trial judge to put questions to the panel of jurors before the trial begins in order to pre-empt any risk of partiality. This practice is typically used in terrorist cases as well as in cases involving allegations of police misconduct or fraud against companies or government departments. The judge’s questions are designed to establish whether, for example, a potential juror is related to or is a close friend of police officers or members of the armed forces, or is employed by the company or government department involved in the criminal proceedings.
28. Section 17 of the Juries Act 1974 states that the verdict of a jury in proceedings in the Crown Court need not be unanimous if (a) in a case where there are not less than eleven jurors, ten of them agree on the verdict, and (b) in a case where there are ten jurors, nine of them agree on the verdict. The jury must spend at least two hours in deliberations before a majority verdict can be accepted.
29. At any time during their deliberations the jurors may send a note to the trial judge asking for further assistance or clarification. On receipt of a jury note the established practice is for the trial judge to show the note to counsel for the prosecution and defence in the absence of the jury and to invite their submissions on a suitable response. Where a judge receives a note from a jury, including one alleging misconduct or bias within the jury, the following options are available to the judge:
(a) to give the jury a further direction; or
(b) to discharge up to three jurors and to allow the trial to continue with the remaining jurors (section 16 of the Juries Act 1974); or
(c) to discharge the entire jury and order a retrial before a fresh jury, if the judge considers there is a high degree of need for this course of action; or
(d) to enquire of the jury as a whole whether they are capable of continuing and returning a verdict.
30. Where an application to discharge a juror on the ground of misconduct or bias is made, it is established in English statute law (see paragraph 31 below) and common law that enquiries or investigations should not be made into what is said in the jury room after the jury have retired (R. v. Orgles [1994] 1 Weekly Law Reports 108).
31. The rule governing the secrecy of jury deliberations is set out in section 8 (1) of the Contempt of Court Act 1981. Section 8 (1) states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
32. In the case of R. v. Gough ([1993] 2 All England Law Reports 724) the House of Lords restated and clarified the law on bias which was applicable at the time of the conviction of the applicant. If the possibility of bias on the part of a juror comes to the attention of the trial judge in the course of a trial, the trial judge should consider whether there is actual bias or not (a subjective test). If this has not been established, the trial judge must then consider whether there is a "real danger of bias affecting the mind of the relevant juror or jurors" (an objective test). In this latter respect Lord Goff, in the Gough case, stated as follows:
"... I think it is unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court, in such cases as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time ... I would prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias."
33. Section 95 of the Criminal Justice Act 1991 came into force on 31 October 1991. The Secretary of State is obliged under section 95 to publish each year such information as he considers necessary for the purpose of, inter alia, facilitating the performance by persons engaged in the administration of criminal justice of their duty to avoid discriminating against any persons on the ground of race.
34. In March 1991 the Lord Chancellor announced the formation of an Ethnic Minorities Advisory Committee as a sub-committee of the Judicial Training Board. By 10 November 1993 this sub-committee had initiated its first seminar on ethnic minority issues for members of the senior judiciary. Race-awareness training for full and part-time members of the judiciary began in early 1994 and is the largest single judicial training exercise ever conducted in the United Kingdom.
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