ITEMID: 001-86368
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GÜLMEZ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Preliminary objection joined to the merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 4. The applicant was born in 1965 and is serving his prison sentence in the Ankara Sincan F-type prison.
5. In March 2000, the applicant, who was accused of murder, armed robbery and membership of an illegal organisation, namely the TKP-ML (Türkiye Komünist Partisi / Marksist Leninist, Turkish Communist Party / Marxist Leninist), was placed in detention on remand in the Nevşehir prison.
6. On 19 December 2000 the applicant was transferred to the Ankara Sincan F-type prison.
7. On 2 January 2001 the Disciplinary Board of the F-type prison (“the Board”) found the applicant guilty of having damaged prison property and, pursuant to Article 157 of the Regulations on the administration of penitentiary institutions and the execution of sentences (“the Regulations”), prohibited him from receiving visitors for a period of three months. According to the Board’s decision, on 24 December 2000 the applicant had broken the ventilation in his ward and written the name of an illegal organisation on his wall. The decision of the Board was reviewed and upheld by the Ankara State Security Court, in accordance with Article 116/5 of the Code of Criminal Procedure. The court delivered its decision on the basis of the case file. It also referred to the applicant’s statement in which he had admitted committing these acts in protest against the general situation in Ftype prisons. The penalty was enforced between 25 January 2001 and 25 April 2001.
8. On 13 March 2001 the Board once again imposed a disciplinary sanction on the applicant and prohibited him from receiving visits for two months. According to the Board’s decision, on 15 February 2001, following a meeting with his lawyer, the applicant had refused to be searched by prison officers and had shouted slogans. In his defence submissions, the applicant admitted that he had resisted the prison officers when he was ordered to take off his shoes. On 28 March 2001 the Board’s decision was reviewed and upheld by the Ankara State Security Court. The applicant filed an objection with the public prosecutor against this decision under Article 162 of the Regulations. On 2 May 2001 the public prosecutor rejected the applicant’s request. The penalty was enforced between 27 April and 27 June 2001.
9. On 17 May 2001 the Board found the applicant guilty of having damaged prison property, possessing a sharp cutting instrument made from a prison bed, and having an excessive amount of money in his possession. It accordingly prohibited him from receiving visitors for a period of three months. In the meantime, Law no. 4675 entered into force, which stipulated that decisions delivered by Disciplinary Boards were to be reviewed by the Enforcement Judge. Accordingly, on 21 June 2001, the decision of 17 May 2001 was reviewed. The judge upheld the Board’s decision, on the basis of the case file and taking into account the applicant’s statement. This decision was served on the applicant on 3 July 2001 and the penalty was enforced between 31 July and 30 October 2001.
10. On 21 May 2001 the applicant received a reprimand for having chanted slogans in the prison. The Board held that the applicant should be warned that he would receive heavier penalties if he continued committing similar offences.
11. On 18 and 22 May 2001 respectively, the prison guards prepared two incident reports according to which the applicant had damaged public property by breaking the loudspeaker in his cell and had incited other inmates to disturb order by chanting slogans. In his statement dated 25 May 2001, the applicant admitted that he had chanted slogans but denied that he had damaged the loudspeaker in his cell. On 29 May 2001 the Board found the applicant guilty and prohibited him from receiving visitors and from sending and receiving letters for a period of a month. On 21 June 2001 the decision was reviewed and upheld by the Enforcement Judge. That decision was served on the applicant on 29 June 2001 and he filed an objection against it. On 4 July 2001 the Enforcement Court dismissed the applicant’s objection and the penalty was enforced between 29 June and 29 July 2001.
12. On 6 June 2001 the applicant was caught by prison guards as he was climbing onto the window bars of his cell. In his statement dated 14 June 2001, the applicant maintained that he had climbed up to reach a newspaper which was allegedly on the roof. On 18 June 2001 the applicant was once again prohibited from receiving visitors for three months by the Board for having climbed onto the window bars. On 2 July 2001 the penalty was reviewed and upheld by the Enforcement Judge. That decision was served on the applicant on 1 November 2001.
13. These Regulations provide as follows:
“Those whose acts constitute a breach of convicts’ obligations arising from laws, regulations and orders, or are prohibited, shall be liable to one of the following disciplinary penalties according to the nature and severity of the circumstances:
1– Reprimand;
2– Deprivation of the right to receive visitors;
3– Deprivation of the right to send and receive letters;
4– Solitary confinement. ...
A prisoner may be simultaneously sentenced to the penalties of a deprivation of the right to receive visitors and the right to send and receive letters. ...”
“The penalty of a deprivation of the right to receive visitors deprives convicts of the right to receive visitors during the visiting hours set out in the internal regulations.
This penalty cannot be imposed on a prisoner for more than three months.”
“Before a disciplinary sanction is imposed, a prisoner who is charged with a disciplinary offence shall be heard with regard to the acts of which he is accused.”
“Disciplinary penalties imposed by the Disciplinary Board shall be executed promptly. If the director of the institution or at least two members of the disciplinary board, or the convict, consider that the decision concerning a disciplinary penalty is erroneous or insufficient, he or they can file an objection within twenty-four hours with the public prosecutor’s office.
Decisions taken by the public prosecutor shall be final.”
“Decisions concerning disciplinary penalties and measures [in respect of remand prisoners] shall be enforced following the approval of the judge.”
14. Section 4 of Law no. 4675, which lays down the competence of Enforcement Judges, provides that objections filed against disciplinary sanctions shall be dealt with by such a judge. Article 5 provides that the prisoner concerned, his/her close relative or legal representative, can file an objection against a disciplinary sanction. Furthermore, Article 6 stipulates that the Enforcement Judge shall decide on the basis of the case file, without holding a hearing. This judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require. An appeal lies against the decisions of Enforcement Judges to the nearest Assize Court.
15. This legislation lays down new provisions on prison discipline, including a list of punishable acts, the penalties relating to them and the procedure to be followed. In one of its reports (CPT/inf (2008) 13), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment examined the legislation and found that these new provisions did not call for any particular comment. However, it raised two questions concerning disciplinary procedures, namely lawyers’ participation in disciplinary proceedings, and its corollary, lawyers’ access to their clients’ disciplinary file. Furthermore, the CPT queried whether the current provisions of the legislation rule out the involvement of a lawyer during disciplinary proceedings. In this context, it referred to Rule 59 of the European Prison Rules (see the next paragraph).
16. The recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), insofar as relevant, reads as follows:
“Discipline and punishment
56.1 Disciplinary procedures shall be mechanisms of last resort. ...
57.2 National law shall determine:
a. the acts or omissions by prisoners that constitute disciplinary offences;
b. the procedures to be followed at disciplinary hearings;
c. the types and duration of punishment that may be imposed;
d. the authority competent to impose such punishment; and
e. access to and the authority of the appellate process.
58. Any allegation of infringement of the disciplinary rules by a prisoner shall be reported promptly to the competent authority, which shall investigate it without undue delay.
59. Prisoners charged with disciplinary offences shall:
a. be informed promptly, in a language which they understand and in detail, of the nature of the accusations against them;
b. have adequate time and facilities for the preparation of their defence;
c. be allowed to defend themselves in person or through legal assistance when the interests of justice so require;
d. be allowed to request the attendance of witnesses and to examine them or to have them examined on their behalf; and
e. have the free assistance of an interpreter if they cannot understand or speak the language used at the hearing.
60.1 Any punishment imposed after conviction of a disciplinary offence shall be in accordance with national law.
60.2 The severity of any punishment shall be proportionate to the offence. ...
60.4 Punishment shall not include a total prohibition on family contact. ...
61. A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76995
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BLAKE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 6. Between 1944 and 3 May 1961 the applicant was a member of the SIS. On 16 August 1944 he signed an undertaking (Official Secrets Act 1911 - “the 1911 Act”) which applied during and after his SIS service.
7. In or around 1951 the applicant became an agent for the Soviet Union when he disclosed secret information to the Soviet authorities. In 1960 he was arrested. In 1961 he pleaded guilty to five counts of unlawfully communicating information contrary to the 1911 Act and was sentenced to 42 years' imprisonment. In 1966 he escaped from prison. He made his way to Berlin and from there to Moscow where he lives to date.
8. In 1989 he wrote his autobiography entitled “No Other Choice” (“the Book”) which was described later by the High Court as “his apologia for the course his life has taken”. Substantial parts related to his activities, and were based on information acquired by him as an S.I.S. officer.
9. In May 1989 he signed a contract with a Publisher to publish the Book in the United Kingdom. He was paid at that stage an advance on royalties (33, 650 pounds sterling (GBP) net) and a further advance royalty payment (GBP 55,000) was due to him on publication. In September 1990 the Publisher announced the impending publication of the Book and it was published on 17 September 1990.
10. By letter of 14 September 1990 to the Publisher, the Treasury Solicitor stated that it would hold the Publisher liable for the applicant's breach of his duty of confidentiality. The Publisher denied the claims but confirmed that it would not make payments without notice to the Crown. The Treasury Solicitor's letter to the Publisher of 23 November 1990 considered the applicant liable for a breach of a fiduciary duty to the Crown: the Publisher rejected these claims.
11. The Attorney General (“AG”) issued a writ in the High Court on 24 May 1991 seeking from the applicant any financial benefit from publication (royalties already due from the Publisher and any future royalties) arguing that in writing and authorising the publication of the Book, he had acted in breach of the duty of confidence he owed to the Crown as a former member of the SIS. There was no reliance on the 1911 Act, the Official Secrets Act 1989 (“the 1989 Act”) or on the undertaking signed in 1944.
12. On 17 June 1991 a statement of claim was submitted.
13. On 17 November 1991 an extension of time was given for lodging the defence and this was filed on 6 January 1992.
14. By letter dated 3 December 1991 to the applicant, the Legal Aid Area Office refused legal aid and he appealed within the 14 day time-limit. By letter of 7 April 1992 that Office indicated that his appeal had been adjourned pending receipt from him of further information in relation to royalty payments already made to him and it was noted that he had not requested the Treasury Solicitor to release the monies held by the Publisher to fund his defence of the proceedings. In April and May 1992 the applicant requested the Treasury Solicitor to release the monies held by the Publisher to fund his defence, and these requests were refused (in April and July 1992, respectively).
15. In May 1992 the Publisher rejected the applicant's request for the payment of royalties due, or at least GBP 20,000, to cover legal costs maintaining that that was a matter between the applicant and the Crown.
16. On 20 May 1992 the applicant's sister completed a schedule detailing how the payments received from the Publisher had been spent: some on household goods with the majority given to family members.
17. On 3 July 1992 his solicitors informed the Legal Aid Area Office how the royalty payments to date had been spent and about the refusal of the Treasury Solicitor and the Publisher to release the monies to him. By letter dated 27 July 1992 from Legal Aid Area Office the applicant was informed that the Area Committee had rejected his appeal. It appeared to the Committee unreasonable that he should be granted representation: since the litigation was known to him, not later than 28 June 1991, he had voluntarily divested himself of substantial funds under his control and direction. The applicant claimed that he had given approximately GBP 20,000 to his children before 28 June 1991 and that only GBP 14,000 had been spent thereafter (most of which he had given to his son). The balance remaining (GBP 4,165) was insufficient to fund his litigation.
18. By letter dated 12 August 1992 the applicant informed the Treasury Solicitor that he would apply to the High Court for an order that the AG consent to the release of the relevant monies to fund his defence. This application was made on 20 August 1992 and on 21 August 1992 the matter was adjourned for a hearing before a judge. On 18 February 1993 the High Court dismissed the application finding that it had no jurisdiction to make an injunction against the Crown. The matter could be revisited if the Publisher was joined as a third party to the proceedings. On 8 March 1993 the High Court refused leave to appeal.
19. On 19 May 1993 the High Court allowed the applicant serve a third party notice on the Publisher, the notice issued on 24 June 1993, on 27 September 1993 the Publisher submitted its defence and counterclaim followed by, in February 1994, Further and Better Particulars of the Counterclaim. The Publisher did not oppose the release of funds and the applicant renewed his request for release of the funds.
20. On 22 June 1994 the High Court rejected his re-application for the release of the monies: the Crown's claim was prima facie a strong one. Many litigants presented their cases themselves and the court was able to ensure that there was a fair trial. Since he was a fugitive from justice and would not appear in person, the lack of legal representation would not deny him a fair trial. It was also noted that, by this time, he had received in the region of $11,000 for a German television documentary which could contribute to his legal costs.
21. On 12 August 1994 his solicitors applied and were granted leave to cease to act for the applicant. They could not continue to act on a pro bono basis and costs' orders had already been made against the applicant.
22. Given that the applicant would not be attending to represent himself and on the initiative of the AG, on 25 July 1995 the High Court appointed a Queen's Counsel and a junior counsel to act as amici curiae in the case. The Crown was also represented by Queen's Counsel and by junior counsel. The applicant was not present or further represented before the High Court.
23. On 1 and 2 April 1996 a hearing took place in the High Court. On 19 April 1996 the High Court rejected the AG's application by detailed judgment and, in particular, the AG's claim of a continuing fiduciary duty owed by the applicant to the Crown. On 20 May 1996 the Crown appealed.
24. The Legal Aid Area Office refused legal aid for the appeal by letter dated 30 May 1996 stating that the applicant had not shown reasonable grounds for taking, defending or being a party to proceedings. In particular, he had not made any comment on the Crown's grounds of appeal and it was not therefore possible to determine his likely prospects of success. He appealed this refusal, submitting detailed and reasoned argument. The Legal Aid Area Office, by letter dated 25 June 1996, confirmed the rejection of his appeal noting that the Committee considered that it would be unreasonable to grant legal aid to enable him to continue to pursue a claim so long as he remained “a fugitive from justice already meted out to you”.
25. His solicitors again applied for the release of the monies to fund his litigation which application was rejected by the Court of Appeal.
26. The Court of Appeal hearing took place on 6 and 7 October 1997. The applicant was neither represented nor present and the Publisher took no part in the proceedings. The AG was represented by the Solicitor-General, Queen's Counsel and two junior counsel, with a Queen's Counsel and one junior counsel appearing as amici curiae. The Court of Appeal later noted that the amici curiae had deployed before it all the arguments which the applicant might have wished to present if he had been present.
27. Counsel acting as amici curiae suggested a possible public law remedy and the court also considered that the AG might have a private law restitutionary remedy against the applicant. The proceedings were therefore adjourned (until 1 December 1997) to allow submissions on those two issues as defined by the court. The AG was also granted leave to amend his statement of claim. Arrangements were made for the applicant to be sent the amended statement of claim. He did not respond because, he submitted, he was not legally represented.
28. On 16 December 1997 Lord Woolf M.R. delivered the court's judgment dismissing the three private law grounds of appeal (breach of a life-long fiduciary duty arising from S.I.S. employment; breach of contract given the undertaking signed in 1944; and a claim for restitutionary damages for profits from a breach of contract where the defendant obtained profit by doing the very thing which he contracted not to do). The Crown's public law claim (the AG's inherent power to bring proceedings to ensure the enforcement of the criminal law) was allowed. Accordingly, Lord Woolf M.R. granted an injunction restraining the applicant from receiving any payment or other benefit in connection with the exploitation of the Book
29. On 24 January 1998 the applicant's solicitors sought leave to be reinstated and, acting on a pro bono basis, lodged skeleton arguments before the Court of Appeal seeking leave to appeal to the House of Lords. On 28 January 1998 the applicant's representatives went back on record. On 22 April 1998 the Court of Appeal gave leave to appeal. On 24 April 1998 the applicant requested waiver of security for costs and the Treasury Solicitor confirmed consent on 24 June 1998.
30. On 24 June 1998 the House of Lords allowed the filing of the appeal petition out of time. On 30 July 1998 the applicant again applied for the release of the monies held by the Publisher, which was refused by the Treasury Solicitor on 25 August 1998. His request to the House of Lords for the release of monies was made on 15 October 1998 and was rejected in November 1998, the House of Lords advising him to apply for a waiver of the appeal fees. The applicant submitted that between November 1998 and May 1999 he corresponded with the Legal Aid Area Office concerning funding for the appeal to the House of Lords. On 5 June 1999 the applicant returned the completed waiver request form and on 25 June 1999 the applicant's solicitors applied for the waiver of appeal fees. On 2 July 1999 the House of Lords requested further information of the applicant as regards the waiver application. Between 7 and 20 July the applicant and the Treasury Solicitor agreed on a statement of facts for the purposes of the appeal.
In or around late 1999/early 2000 the House of Lords agreed to waive the appeal fees and security for costs. The expenses (not including legal costs) of preparing the hearing bundles for the House of Lords amounted to GBP 2,709. His solicitor and junior counsel represented him on a pro bono basis. Two Queen's Counsel and two junior counsel represented the Crown.
31. The appeal hearing was fixed for 7-9 March 2000. Although he accepted that the restitutionary damages' (private law) issue raised points of general interest, the AG confined the appeal to the public law injunction. However, by letter dated 14 February 2000 to the parties, the House of Lords indicated that it wished to hear argument at the hearing on the matter of restitutionary damages for breach of contract. Both parties prepared written submissions on the point and a hearing took place between 7 and 9 March 2000.
32. The main judgment was delivered on 27 July 2000 by Lord Nicholls, with whom Lords Goff and Browne-Wilkinson concurred. Lord Steyn delivered a separate judgment and Lord Hobhouse dissented. Lord Nicholls concluded that there was no reason in principle to rule out an account of profits as a remedy for breach of contract in exceptional situations notably where other remedies were inadequate and where the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit.
The final basis for making an order for an account of profits was the applicant's breach of contract and, in particular, the undertaking of confidentiality signed in 1944. However, that did not confer on the Crown any proprietary interest in the debt due to the applicant from the Publisher. The Crown was entitled, on the taking of the account, to a money judgment which could then be enforced by attachment of the debt in the usual way. Given that the Publisher who held the monies wished to deduct its legal expenses in defending the third party proceedings, the appropriate form of order was a declaration that the AG was entitled to be paid a sum equal to whatever amount was due and owing to the applicant under the publishing agreement of 4 May 1989. The injunction would remain in force until the Publisher made payment to the AG.
33. The applicant remained in Russia for the duration of the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90316
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: J. LAUTIER COMPANY LIMITED v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Geoffrey Valenzia;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, J. Lautier Company Limited, is a limited liability company registered in Malta. It was represented before the Court by Dr T. Comodini Cachia and Dr Pio Valletta, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1995 the applicant company acquired a piece of land measuring 3,008 sq.m in Msida. The land is situated in an area where both commercial and residential properties are to be found. It adjoins on one side a public main road. However, the land in question is currently situated outside development zones and its development is subject to strict limitations.
By a declaration published in the Government Gazette of 29 September 2003, under the Land Acquisition Public Purpose Ordinance (“LAPPO”), Chapter 88 of the Laws of Malta, it was stated that a portion of the land measuring approximately 486 sq.m was to be directly expropriated by the State by way of outright purchase. The declaration did not state the aim of the expropriation but only the sum offered as compensation, 47,600 Maltese Liras (MTL – approximately 114,240 euros (EUR)).
According to the information provided by the applicant company on 19 September 2006, by that date the sum offered in compensation had not been deposited. Consequently, according to law (see relevant domestic law), it was prohibited from commencing proceedings before the Land Arbitration Board (“LAB”), the competent authority, to assess the amount of compensation payable.
According to the Government and as evidenced by the documents submitted, the amount of compensation was deposited in an interest-bearing bank account on 3 October 2003, four days after the official declaration. By a letter of 8 October 2003 the applicant company was informed of the said acquisition. However, the applicant company did not take steps to prove its ownership or to withdraw the said compensation. In August 2007 the amount of compensation plus interest stood at MTL 51, 370 (approximately 119,660 euros (EUR)), an amount which the applicant could freely withdraw. This procedure is still open to the applicant company.
On an unspecified date the applicant company instituted proceedings before the Civil Court (First Hall) asking it to declare that the expropriation was in violation of its rights under Article 1 of Protocol No. 1 to the Convention. It claimed that the expropriation had not been effected for a public purpose since the land was to be used for the building of stables for the commercial use of other private persons. Moreover, the applicant company had been made to suffer an excessive burden, since the land in question offered the only means of access to the rest of its land. Consequently, the expropriation had not been proportionate vis-a-vis the aims pursued.
On 7 April 2005 the Civil Court rejected the applicant company’s claims. It held that the expropriation had been needed for a public purpose, namely the redevelopment of slum housing and the construction of a new system of flood relief. The fair balance principle had been maintained since construction for social housing was in the public interest and it had not been proved that an alternative area of land in the vicinity could be used.
On an unspecified date the applicant company appealed, claiming that the project could have been restructured differently in order to limit the individual and excessive burden suffered by the applicant company and that the taking had been necessary solely for the benefit of third parties.
By a judgment of 20 March 2006 the Constitutional Court rejected the applicant company’s appeal. It held that slum clearance was a social housing project which fell within the definition of public interest. The residents of the slum area kept animals for commercial purposes and it was thus understandable that the new redeveloped area would provide stables and that for public health reasons it had been subsequently decided to locate the stables on the periphery of the residential area. As indicated by the court of first instance, it had not been proved that there was other land which could have been used for this purpose. It was not correct to say that more land had been taken than was necessary, or that the land expropriated blocked access to the remainder of the land owned by the applicant company. Moreover, the applicant company would have received compensation for the land expropriated and the adequacy of the compensation had not been contested. Thus, it could not be said that the applicant company had been made to bear a disproportionate burden.
The relevant sections of the Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), read as follows:
Section 3
“The President of Malta may by declaration signed by him declare any land to be required for a public purpose.”
Section 6
“No person shall require any proof of the public purpose referred to in articles 3 and 4 and in article 8(1) other than the declaration of the President of Malta.”
Section 9
“ (1) Whenever the President of Malta declares that any land is required for a public purpose, the competent authority shall cause a copy of such declaration, ... to be published in the Government Gazette ...”
Section 22
“(1) If the competent authority and the owner agree on the amount of compensation for any land, the Board, on the application of either of the parties, shall make an order putting the agreement into effect ...
(3) Within fifteen working days from the publication of the President’s Declaration as referred to in sub-article (2) in the Gazette, the Government shall deposit in an interest-bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this sub-article prescribe) a sum equal to the amount of compensation offered in the President’s Declaration ...
...
(6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance ...
(7) Such application shall be filed with the Registry of the Board within twenty-one days from the date of notification of the judicial act by the competent authority... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance.
...
(10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interest thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.”
An agreement on the compensation could be reached at any time. Sections 13(1) and 22 of the Ordinance in issue provided that:
Section 13 (1)
“The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ...”
The Board mentioned in Section 22 was the LAB. According to Section 25(e), it was competent to:
“... assess the amount of compensation payable under any of the provisions of this ordinance and for that purpose to declare whether any area is a building site or agricultural or waste land.”
For the purposes of compensation Section 27(1) (b), provided that:
“the value of the land shall,... be taken to be the amount which the land if sold on the open market by a willing seller might be expected to realise.”


ITEMID: 001-85817
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: YILMAZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: The applicant, Ms Gülcan Yılmaz, is a Turkish national who was born in 1948 and lives in Uşak. She was represented before the Court by Mr Atak, a lawyer practising in Uşak. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the owner of a building in Uşak. On an unspecified date, she agreed to sell this building to B.Ç. and in exchange she received a certain amount of cash and two bonds dated 23 November 1997 and 23 December 1997 respectively. She accordingly transferred the title deed to B.Ç.’s name. Shortly after this transaction, B.Ç. sold the building to a certain A.G. and the title was registered in the latter’s name.
On 11 August 1997 the applicant’s lawyer filed an action before the Uşak Civil Court of General Jurisdiction against B.Ç. and A.G., arguing that B.Ç. had deceived the applicant during the transaction, and thus the transfer of the title deed should be annulled and the title re-registered in her name. In this respect, she claimed that B.Ç. had committed fraud during the purchase of the land. In the meantime, the applicant also initiated criminal proceedings against B.Ç. in the Uşak Criminal Court, accusing him of fraud (case no. 1997/691).
On 18 December 1997 the Uşak Civil Court of General Jurisdiction held its first hearing and took statements from several witnesses. The court also took note of the fact that there were three separate criminal proceedings pending against B.Ç. on charges of fraud (namely case no. 1997/691 initiated by the applicant before the Uşak Criminal Court; case no. 1997/630 initiated by a certain D.D. before the Uşak Criminal Court and case no. 1997/160 before the Uşak Assize Court). It therefore decided to request copies of these case files which were found to be relevant to the instant case.
Thereafter, the civil court awaited the outcome of these criminal proceedings, each time adjourning the hearings to a later date and without taking any decision on the merits of the case.
B.Ç. was subsequently acquitted of the charges against him in all three cases and the Uşak Civil Court of General Jurisdiction received copies of the relevant case files and judgments on 5 March 2001, 27 November 2001 and 5 March 2002 respectively.
On 13 March 2002 the Uşak Civil Court of General Jurisdiction dismissed the applicant’s case. In taking this decision, the court based itself on the acquittal decision delivered by the criminal court in case no. 1997/691. The court also held that there was nothing in the case file to suggest that the defendants had not acted in good faith during the transaction.
On 12 November 2002 the Court of Cassation, after holding a hearing on the merits of the case, upheld the judgment of 13 March 2002.
On 24 February 2003 the Court of Cassation further dismissed the applicant’s request for rectification.


ITEMID: 001-108250
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF JANOS TOTH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1951 and lives in Budapest.
5. In or about November 1993 the applicant and his wife brought an action against several respondents before the Budapest XVIII/XIX District Court, seeking ownership of a real estate and protection against trespass.
6. The District Court held numerous hearings between 27 June 1994 and 29 June 1995.
7. On 5 July 1995 the District Court delivered a partial judgment, dismissing the plaintiffs’ claim for protection against trespass. This decision was upheld on appeal by the Budapest Regional Court on 13 March 1996.
8. On 8 June 1998 the District Court appointed an expert who filed an opinion on 29 November 1998.
9. The final first-instance judgment was delivered on 14 September 1999. On appeal, the Budapest Regional Court decided the case on 20 March 2002.
10. The applicant lodged a petition for review with the Supreme Court. It quashed the previous judgments and remitted the case to the first-instance on 25 April 2005.
11. In the resumed proceedings the applicant notified the domestic courts that one of the respondents had died on 2 November 2002. On 22 February 2006 the Supreme Court thus established that the review proceedings had been discontinued on this account, and annulled its previous judgment of 25 April 2005 (see paragraph 10 above). The same day, the Supreme Court remitted the case to the first-instance.
12. Between 16 October 2007 and 12 March 2008 the proceedings were stalled because the applicant did not cooperate with a court-appointed expert.
13. On 16 May 2008 the case was transferred to the Buda Central District Court, due to bias of the judges at the Pest Central District Court.
14. On 12 December 2008 the latter court delivered a partial judgment. On 13 November 2009 the Budapest Regional Court held a hearing on appeal. It appears from the documents available in the case file that the case is still pending before the Regional Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114273
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PETA DEUTSCHLAND v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 6. The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals). It pursues, inter alia, the aims of preventing animal suffering and of encouraging the public to abstain from using animal products.
7. In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
8. In March 2004, three individual persons, P.S., C. K. and S. Korn, filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of C. K.’s dead family members.
9. On 18 March 2004 the Berlin Regional Court granted the injunction. By judgment of 22 April 2004, that same court confirmed the interim injunction. The court considered that the plaintiffs had a claim to be granted injunctive relief under section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, sections 185 et seq. of the Criminal Code and Article 1 §§ 1 and 2 of the German Basic Law (see relevant domestic law, below). According to the Regional Court, the plaintiffs were concerned by the impugned statements in their capacity as former victims of the Holocaust.
10. The Regional Court further considered that the impugned representations constituted expressions of opinion and were thus protected under Article 5 of the Basic Law. This right protected expressions of opinion even if they were formulated in a polemic or offensive way. The depictions were particularly disturbing and drew a high degree of media attention because the pictures combined on the posters showed seemingly similar situations, which could only be discerned by the fact that one side showed coloured photographs of animals and the other black-and-white photos of humans, both alive and dead. Seen from the point of view of an ordinary spectator, the impugned posters had to be interpreted as putting the fate of the depicted animals and of the depicted humans on the same level.
11. There was no indication that the applicant association’s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection. The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals.
12. The Regional Court finally considered that the decision of the instant case did not depend on a weighing of competing interests, as the expression of opinion violated the plaintiffs’ human dignity. The comparison offended the plaintiffs in their capacity as Holocaust victims by violating the respect for their human dignity. This violation was aggravated by the fact that the depicted persons were shown in a most vulnerable state.
13. On 27 August 2004 the Berlin Court of Appeal rejected the applicant’s appeal.
14. On 2 December 2004 the Berlin Regional Court, in the main proceedings, confirmed its injunction. Further to the reasons given in the interim proceedings, the Regional Court considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering, as the Basic Law put human dignity in its centre.
15. On 25 November 2005 the Berlin Court of Appeal rejected the applicant’s appeal.
16. On 20 February 2009 the Federal Constitutional Court rejected the applicant’s constitutional complaint. The Federal Constitutional Court considered that the interpretation of the impugned pictures given by the civil courts was coherent and met the requirements imposed by the right to freedom of expression.
17. The Federal Constitutional Court expressed its doubts as to whether the intended campaign violated the human dignity of either the depicted persons or the plaintiffs. There was no doubt that the photographs depicted Holocaust victims in situations in which they were highly degraded by their torturers. However, this did not necessarily imply that the use of these pictures also amounted to a violation of the represented persons’ human dignity. Having regard to the specific circumstances of the instant case, the court considered that the intended campaign did not deny the depicted Holocaust victims their personal value by putting them on a par with animals. Even though the applicant association might generally be convinced of the equality of human and animal suffering, the intended campaign did not pursue the aim to debase, as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal.
18. However, the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff’s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs’ personality rights. Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity.
19. The Federal Constitutional Court did not find it necessary to remit the case for re-examination to the lower courts, as there was no indication that the lower courts would come to a different conclusion in case of a remittal. When weighing the competing interests, the plaintiffs’ legal position could be granted preference over the applicant association’s right to freedom of expression even without relying on a violation of the plaintiffs’ human dignity. The lower courts had put forward sufficient reasons to allow this conclusion. In particular, the courts had begun to weigh the competing interests. Furthermore, they had based their assumption that the impugned campaign violated the plaintiffs’ human dignity on the fact that they considered the violation of the plaintiff’s personal honour as particularly serious. As these considerations applied in a similar way to a violation of the plaintiffs’ personality rights, it had to be assumed that these principles would also guide the courts in case of a remittal.
20. The relevant provisions of the German Basic Law read as follows:
“(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”
Protection of the natural foundations of life and animals
“Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”
21. The relevant provisions of the German Civil Code read as follows:
“(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person, is liable to make compensation to the other party for the damage arising from this.
(2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person ...”
“(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.”
Section 185 of the Criminal Code reads as follows:
“Insult shall be punished with imprisonment for not more than one year or a fine ...”
According to the constant case-law of the German civil courts, section 823 §§ 1 and 2 in conjunction with section 1004 (in analogous application) of the Civil Code and section 185 of the Criminal Code grants any person whose personality rights concretely risk being violated by another person a claim to compel that other person to refrain from performing the impugned action.
22. In March 2004 the applicant association organised an exhibition in Vienna, where the same posters which form the subject matter of the instant proceedings were publicly displayed. A number of Austrian citizens of Jewish origin, who had allegedly survived the Holocaust and who were not identical with the plaintiffs in the proceedings before the German courts, filed a request with the Austrian Courts to be granted an injunction ordering the applicant association to desist from publishing the seven specified posters.
23. On 12 October 2006 the Austrian Supreme Court (no. 6 Ob 321/04f) rejected the request. That court expressed its doubts as to whether the plaintiffs were directly affected by the impugned poster campaign. It considered, in any event, that the impugned campaign was justified by the right to freedom of expression. The poster campaign did not debase the depicted concentration camp inmates. The court further considered that the poster campaign, besides addressing an important subject of general interest, had the positive effect of rekindling the memory of the national-socialist genocide. The concentration camp pictures documented the historic truth and recalled unfathomable crimes, which could bee seen as a positive contribution to the process of dealing with the past (Vergangenheitsaufarbeitung). The plaintiffs had only been affected to a limited degree by way of a collective insult. Conversely, the applicant association had a legitimate interest in publicly addressing its subject even in a drastic way.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-84705
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: JAKESEVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
TEXT: The applicants, Mr Ivan Jakešević and Mr Ilija Jakešević, are Croatian nationals who were born in 1941 and 1962 respectively and live in Grubišno Polje. They were represented before the Court by Mr B. Kozjak, a lawyer practising in Virovitica. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 August 2000 the first applicant’s wife and son, and the second applicant’s mother and brother, died in a road accident.
On 15 December 2000 the Daruvar State Attorney’s Office (Općinsko državno odvjetništvo u Daruvaru) indicted a certain D.P. for the criminal offence of causing the above road accident.
At the hearing held on 19 December 2001 the Bjelovar Municipal Court (Općinski sud u Bjelovaru) heard evidence from D.P., the first applicant and several other witnesses.
The court subsequently requested an expert opinion, which was obtained on 29 November 2003.
On 27 February 2004 the court held another hearing and adopted a judgment finding D.P. guilty as charged and sentencing him to nine months’ imprisonment.
Following an appeal by both parties, on 27 May 2004 the Bjelovar County Court (Županijski sud u Bjelovaru) quashed the first-instance judgment and remitted the case.
In the resumed proceedings, the court ordered a combined traffic and forensic expert opinion in order to establish the cause of the accident. On 16 May 2005 the experts submitted their opinion.
On 17 June 2005 the court held another hearing and adopted a judgment again finding D.P. guilty as charged and sentencing him to six months’ imprisonment.
On appeal, on 6 October 2005 the Bjelovar County Court increased the sentence to one years’ imprisonment.
The applicants participated in the proceedings from the beginning as injured parties (oštećenici) but never filed a civil (pecuniary) claim for damages.
Meanwhile, on 22 July 2003 the first applicant brought a civil action in the Grubišno Polje Municipal Court (Općinski sud u Grubišnom Polju) against the insurance company C.O. seeking damages for the death of his son. Shortly afterwards, the second applicant brought an identical action before the same court. On 23 September 2003 the two cases were joined.
On 24 September 2003 the court stayed the proceedings pending the outcome of the above criminal trial. The parties did not appeal against that decision.
After it had been informed that the criminal proceedings had ended, on 28 October 2005 the court resumed the civil proceedings.
The Court held hearings on 6 and 20 December 2005, 24 January and 20 February 2006.
On 2 March 2006 the court gave judgment accepting the applicants’ claim in part. The first applicant appealed.
On 7 September 2006 the Bjelovar County Court (Županijski sud u Bjelovaru) dismissed the first applicant’s appeal and upheld the first-instance judgment, which thereby became final.
Meanwhile, on 12 January 2004 the applicants lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above criminal proceedings. They argued, inter alia, that the duration of those proceedings had direct impact on the determination of their claim for damages in the above civil proceedings as they had been stayed pending the outcome of the criminal proceedings complained of.
On 17 December 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared their complaint inadmissible. It found that the applicants were not defendants in the impugned criminal proceedings and that those proceedings therefore did not concern the determination of a criminal charge against them.
Under Croatian law a victim of a criminal offence (injured party) may seek damages from the perpetrator either by filing a pecuniary claim in criminal proceedings pursuant to the Criminal Procedure Act, or by bringing a separate civil action according to the Civil Procedure Act.
The relevant part of the Criminal Procedure Act (consolidated text) (Zakon o kaznenom postupku, Official Gazette no.110/97, 27/98, 58/99, 112/99, 58/02, 143/02 and 62/03), as in force at the material time, provided as follows:
“A pecuniary claim arising out of the commission of a criminal offence shall be examined in the criminal proceedings following the request of authorised persons, provided that this does not delay the proceedings considerably.
The pecuniary claim may be asserted in criminal proceedings by a person entitled to do so in civil proceedings.
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 112/99 and 117/03) reads as follows:
“In civil proceedings the court is bound by a final judgment given in criminal proceedings finding the accused guilty in so far as it concerns the existence of a criminal offence and the criminal liability of the accused.
... [T]he court shall stay the proceedings:
1. When it decided not to rule on a preliminary issue itself.
....
The court may stay the proceedings if the decision on the merits depends on ... whether a criminal act has been committed ..., who committed it and whether that person may be held liable...”
“If the court has stayed the proceedings for the reasons set out in paragraph 1 (1), or paragraph 2 of section 213, the proceedings shall resume when the [concurrent] proceedings before a court or other competent authority end with a final decision, or when the court finds that the reasons for awaiting their outcome no longer exist.
In all other cases stayed proceedings shall be resumed at the request of a party as soon as the reasons for their stay cease to exist.”
The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”


ITEMID: 001-110230
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: FOX v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Kevin Fox, is a British national who was born in 1967 and lives in Potters Bar. He was represented before the Court by Ms M. Ellingworth of Tuckers Solicitors, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Upton and Mr M. Kuzmicki, Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 27 March 2004 officers from the Metropolitan Police Central Robbery Squad, together with specialist firearms officers from the Metropolitan Police Firearms Branch, took part in Operation Rowlock, a pre-planned firearms operation centred on the applicant and two other men. All three had been the subject of police surveillance following the receipt of intelligence information that they were planning to steal gold bullion from the secure facility of a metal processing plant in Enfield. The intelligence stated that the three men would be armed with guns and wearing body armour.
4. The intelligence proved to be correct. Around 10 p.m. on 27 March 2004 the applicant and his two accomplices stole several million pounds’ worth of gold bullion at gunpoint. They left the scene in a car which was intercepted by Operation Rowlock officers when it stopped at traffic lights. The officers fired breaching rounds (designed to destroy door locks and hinges without causing human injury) at the car tyres in an attempt to disable it but this initially proved unsuccessful. The car was driven off at speed but forced to stop further up the road, when more breaching rounds were fired at it. Just before the car stopped, officers saw a handgun thrown out of one of the doors. Armed officers surrounded the stationary vehicle and directed the occupants to get out.
5. The applicants’ two accomplices, one seated in the driver’s seat and one in the back of the car, were arrested without injury. The applicant, however, received injuries to his face and hands. The arresting police officers claimed that the applicant, a large man and a former wrestling champion, violently resisted arrest. In their statements to the Metropolitan Police, Directorate of Professional Standards investigators (see paragraph 10 below), the officers stated that they dragged the applicant from the car, punched him in the face, pulled him to the ground and kicked him at least twice, because he would not obey their instructions to remove his hands from under his body so that they could be sure he was not attempting to use a weapon. The officers stated that while the applicant was on the ground a taser was applied to him four times in “drive stun mode”. A taser is a weapon which uses electrical current to disrupt voluntary control of muscles. When used at a distance, a dart is fired which emits an electric charge and causes immediate, involuntary and short-lasting loss of muscle control. In “drive stun mode”, the taser is applied directly to the body. No dart is fired and pain, rather than loss of muscle control, is used as a means of coercion. According to the police officers, the taser in “drive stun mode” was applied once to the applicant’s back, but did not have the required effect because the applicant was wearing body armour. It was then applied once to the back of the applicant’s neck and twice on his leg. It was then possible to bind the applicant’s wrists behind his back with “plasticuffs”. First aid was administered to him and he was taken to the police station. A search of the ground near the car found a loaded .357 semi-automatic handgun. The applicant was found to have a can of mace (a prohibited tear gas spray) in his pocket.
6. The applicant claimed that when the car pulled over he expected to be arrested. He was carrying an unloaded gun, which he dropped in the foot-well of the car. He remembered getting out of the car and going down on all fours on the floor, to demonstrate surrender. His next memory was sitting or standing against a wall with his hands cuffed behind his back. One of the other men arrested with him later claimed to have seen a taser gun used on the back of the applicant’s neck four times and to have seen police officers kicking and punching the applicant’s head and upper body, for a period of one or two minutes.
7. On arrival at the police station, the arresting officers were examined by a forensic medical examiner, who found them uninjured. The applicant was also examined by the forensic medical examiner, who was briefed by the police that the applicant had been arrested after a struggle and that a taser gun had been used on him four or five times. In his statement, the forensic medical examiner described twelve physical injuries, including a fracture of the right index finger. He decided that the applicant was not fit for questioning and should be taken for treatment to hospital.
8. The applicant was taken to North Middlesex Hospital. The hospital records mentioned that a taser had been used on the applicant during his arrest. The applicant was noted to have sustained facial injuries, namely tenderness around the left eye, cuts to both eyelids and a cut lip; multiple bruising to the scalp; and a fracture of the right index finger. He was given neurological tests. There is no mention in the hospital records of any complaint or injury relating to the use of a taser.
9. The applicant was taken back to the police station for questioning. His solicitor took photographs of the applicant’s injuries, including red marks on the back of his neck, which she believed to have been caused by the taser.
10. Immediately after the arrest the area was sealed as a crime scene. At the time, since the police in the United Kingdom had only recently been issued with tasers as part of a pilot project, every use of a taser by the Metropolitan Police was investigated by the Metropolitan Police Directorate of Professional Standards. The investigation in this case was called “Operation Waseca”. The officer from the Metropolitan Police Directorate of Professional Standards who carried out the investigation examined the scene and established that there were no discharged taser darts and no CCTV cameras operating. Enquiries were made of members of the public but no eye witnesses were identified other than the arresting officers, the applicant and the two men arrested with him. The taser involved in the incident was examined; the electronic download showed that it had been fired four times. The reports of the forensic medical examiner who examined the arresting officers and the applicant were added to the file. Statements were taken from the arresting officers. On the advice of the Crown Prosecution Service, it was decided not to take a statement from the applicant while his trial for robbery was pending, but it was noted that the applicant had made no complaint about the degree of force used to arrest him.
11. The Operation Waseca Report concluded:
“The intelligence on which this operation was based has been confirmed, in that, a robbery took place and the assailants were armed. The tactical option of a ‘hard stop’ was adopted to minimise danger to officers and members of the public.
The officer deploying the Taser considered his tactical options, in accordance with his training, and took the decision to deploy the Taser to detain Mr Fox. Mr Fox was detained and a medical professional later assessed his injuries as minor.
Evidence from the officers involved in this incident corroborates the risk and chain of events. The download of the Taser confirms [the police officer’s] account of the Taser deployment.
There has been no public complaint in this matter and there are no misconduct issues apparent. Officers’ actions were correct in a difficult, dangerous and fast time incident”.
12. The matter was referred to the Independent Police Complaints Commission (“IPCC”), which decided that it did not require any further investigation.
13. The applicant was examined by a consultant psychiatrist on 1 September 2004, on the instruction of his solicitors, with a view to establishing, for the purposes of the trial, the effects on the applicant’s mental state of the force used on arrest, including his ability to be interviewed in the period immediately following his arrest. In his report dated 13 September 2004, the consultant psychiatrist found that the applicant’s memory of the arrest was “patchy” and that since the arrest he had had problems with short-term memory recall and was suffering from post-traumatic stress caused by the violent nature of the arrest. The psychiatrist did not appear to question the applicant’s account that a taser gun had been applied directly to the skin on the back of his neck, “approximately four or five times”. He stated that he was not an expert in tasers, but that he was an expert in the use of electro-convulsive therapy, where lower voltage was used in controlled circumstances. If a taser were used on the back of the neck four or five times, this would be the equivalent of extreme electro-convulsive therapy, and it would cause the applicant to suffer “the typical symptoms of inability to register and lay down new information in his memory during the period of trauma”. The report concluded that:
“Mr Fox’s ability to be interviewed
Mr Fox was suffering from an acute confusional state at the time he was arrested because of the traumas he received to the brain and therefore anything he said during this period cannot be deemed to be reliable in any way. ...
Mr Fox’s fitness to plead
... Since Mr Fox can’t remember details of the alleged offence he will not be able to challenge evidence produced by the Crown. Furthermore, because of his impaired short-term memory, he will find it difficult to follow the process of the court. ...”
14. In September 2004 and January 2005 the applicant was seen by a specialist in forensic psychiatry, also instructed by the applicant’s solicitors. He found the applicant to be suffering from a mild depressive illness, post-traumatic stress and loss of memory of his arrest. This specialist found that the applicant was able to stand trial. The applicant was seen by a different consultant psychiatrist in November 2004, who agreed that he was fit to stand trial.
15. The applicant was tried for robbery and firearms offences in Woolwich Crown Court. The hearing of the prosecution evidence lasted four months, including the examination and cross-examination of the arresting officers regarding the degree of force used during the applicant’s arrest. At the conclusion of the prosecution case, on 20 July 2005, the applicant decided to plead guilty. He was sentenced to seven years’ imprisonment and released from prison in September 2007.
16. On 11 May 2006, some 25 months after the events in question, the applicant’s solicitors wrote to the Commissioner of the Metropolitan Police, asking that the letter be treated as a “formal notice of complaint” about the use of excessive force during the arrest. The matter was referred to the IPCC on 26 June 2006.
17. On 1 March 2007 the IPCC informed the applicant that it had decided to hold a “managed investigation” into the complaint, that is, an investigation carried out by officers from the Metropolitan Police under the supervision of the IPCC. The terms of reference for the investigation were to investigate the use of force by officers during the applicant’s arrest and to consider whether any criminal or misconduct offences arose. The terms of reference also indicated that a managed investigation was considered proportionate, given the period of time that had elapsed and the consequences which this would inevitably have for the effectiveness of any investigation.
18. The investigation was carried out by a Senior Investigation Officer and a Caseworker from the Metropolitan Police Service. The officers involved in the arrest were interviewed under caution on 15 February 2008. They referred to their previous statements and declined to answer further questions. Statements were taken from the applicant and the two men arrested with him. The applicant stated that he was unconscious throughout the arrest and could remember nothing. The two co-accused were unable to identify the officers who had allegedly used a taser and kicked and punched him. The investigators concluded, in the report dated April 2008:
“10.1 It is clear from the available evidence that this was a fast moving, potentially life threatening and violent situation involving the use of firearms. In particular, it is evident from their own testimony that Kevin Fox [and the two co-accused] were armed with firearms and intent on and engaged in criminality of the most serious nature. It is also obvious by their personal use of body armour, that these criminals anticipated being present at the scene of a crime where there was a possibility that firearms would be discharged and where innocent life could be endangered.
10.2 The officers deployed to intercept this criminal gang were also aware of these facts and it must be highlighted that they clearly displayed significant and conspicuous courage in the manner in which they performed their duties on this date.
10.3 It is perhaps disappointingly ironic that three and half years later these officers now have to answer for their actions under an accusation that they behaved in a disproportionately aggressive manner. Allegations levelled at them by others who have the luxury of hindsight, ‘cold-light-of-day’ review and the benefit of not being at risk of being shot at.”
The report concluded that there was no evidence to support any further criminal or disciplinary action against any officer involved in the arrest of the applicant. There was accordingly no case to answer.
19. The investigation was reviewed by an IPCC Senior Investigator. He was satisfied that the investigation had met the terms of reference. In May 2008 the report was sent to the Crown Prosecution Service. They informed the applicant on 14 July 2008 that they did not intend to bring any charges against the arresting officers. A copy of the IPCC Report was sent to him on 28 July 2008.
20. On 15 September 2008 the IPCC wrote to the applicant’s solicitors, stating as follows:
“I now turn to your letters of 19 August 2008, 26 August 2008 and 9 September 2008, in which you raise many questions, some of which relate to specific issues relevant to an incident which occurred more that two years before your client made his complaint. The apprehension and arrest of your client and his two compatriots must be put into the context in which they occurred. It is a fact that Kevin Fox and his compatriots engaged themselves in a criminal act involving theft of gold bullion and the use of weapons. It is also a fact that Kevin Fox was wearing body armour which means he must have held the view that he needed to protect himself. That is not to say he was thus in a position to be unlawfully assaulted. The apprehension and arrest of armed suspects by armed police are by definition fast moving dynamic situations in which police officers have a duty to contain and negate any perceived threat. All identified threats must be negated as quickly as possible. In this case that was achieved.
The injuries suffered by Kevin Fox are documented and are not in dispute. There is no evidence that he had any of his injuries before his arrest and therefore it is not in dispute that they were received as a result of his arrest. It is further not in dispute that a Taser was used as a method of gaining control of him. What is in dispute is the level of force used and therefore the lawfulness of that force.
With regard to evidence, in your letter of 11 May 2006 you state that your client can recall little of the incident. Eleven police officers have provided statements about the incident; ten of these statements are dated 27 March 2004 and one does not bear a date. As at 11 May 2006, the date of the complaint, there was no prospect of obtaining any CCTV evidence or independent witness accounts. The only other people known to be at the arrest scene were [the applicant and his two accomplices]. Statements were taken from all three. There are photographs of Kevin Fox taken at the arrest scene and later in the police station by his then solicitor. This means that all the evidence that could reasonably have been gathered which is capable of being relevant to the matter in dispute has been obtained.
Five police officers were identified from the available evidence as being involved in the apprehension and arrest of Kevin Fox. They were all served with Regulation 9 Notices and were subsequently interviewed under caution. As noted above, all the officers exercised their right to silence and declined to answer any questions.
I note that neither [of the two co-accused] has complained about the circumstances of their arrest and there is no evidence that they received any injuries. While this is in no way probative it does suggest that it was the conduct of Kevin Fox which led him to be kicked and punched as admitted by officers.
As explained above, there is no further evidence which can be gathered which is capable of being relevant to the Terms of Reference, therefore any questions arising can only be answered by the available evidence. I agree that the injuries suffered by your client are not wholly explained by the accounts of the police officers. [One of the applicant’s co-accused] stated, inter alia, on 6 July 2007: ‘I managed to turn my head to the right and could see he was surrounded by five or six people who were kicking him all over his body but they seemed to be concentrating on his top half.’
In relation to the use of Taser, whether or not it was used in accordance with procedure was not part of the terms of reference for this investigation. The use of Taser was the subject of the Operation Waseca report. However I can confirm that the use of Taser in ‘drive stun’ mode is permissible in circumstances where, as here, the subject is wearing body armour.
Having regard to all that is stated above, I do not believe it is possible to conduct a causal analysis of each individual injury. It is clear that there must have been more blows landed by somebody or somebodies upon Kevin Fox than is contained within the police officers’ statements. Given the passage of time, the question of who inflicted those blows will never be known. It is evident from the officers’ response to the interviews under caution that any attempts at further questioning would not take this matter further, and I do not think in any event that any further investigation into this matter would be meaningful or proportionate. In my view it is not possible to determine whether the force used was lawful or unlawful.”
21. In October 2008 the applicant informed the IPCC that he intended to challenge by way of judicial review the decision to undertake a “managed investigation”. He contended that this decision breached his procedural rights under Article 3 of the Convention.
22. The IPCC responded in a letter dated 24 October 2008 that they did not consider that the threshold of Article 3 had been reached, particularly in view of the facts that the applicant had taken part in a serious criminal offence and was armed and wearing body armour.
23. On 12 December 2008, the applicant applied for judicial review of the decisions, set out in the IPCC’s letters of 15 September and 24 October 2008, that Article 3 of the Convention was not engaged and that there was no need for an Article 3-compliant investigation.
24. The applicant was initially refused permission to apply for judicial review. He renewed his application, but it was again refused at a hearing on 22 May 2009. The Deputy High Court Judge found that the complaint about the nature of the IPCC investigation was out-of-time, since the decision to hold a managed investigation had been communicated to the applicant on 1 March 2007. He also rejected the applicant’s argument that the IPCC had applied the wrong test in deciding whether the threshold of Article 3 had been reached. The Judge accepted the applicant’s argument that the degree of injury caused was not the sole element and that intense, but momentary, pain from a taser could also be taken into account, together with a number of other factors, including the attributes of the complainant and the context in which the alleged ill-treatment took place. The Judge found, however, that the IPCC properly took into account all the relevant circumstances, including the applicant’s assertion that he did not resist arrest and the fact that a taser was used. He concluded:
“I am of the clear view that this complaint comes far too late. I have already outlined the dates very briefly, and have indicated that the nature of the investigation, which by its very nature was a non-Article 3 compliant investigation, was determined and notified to the complainant on 1 March 2007, and, as I have mentioned, a good deal of time, effort, resource, and thereby public money, went into pursuing that investigation over 18 months.
...
It is not the right of a complainant to the IPCC to sit, metaphorically, on his or her hands, see how things go, and, after time, trouble, and huge expense is incurred over a period of time (in this case 18 months), only then, if dissatisfied at the end, to raise the complaint which could have been raised at the beginning. I wish emphatically to reject the contrary submission that was made to me. In my view, there is no arguable case whatever for the massive extension of time which would be required to permit this application to proceed in respect of the substance of the first matter of which judicial review is sought, which was contained in the letter of 1 March 2007, and that on the grounds I have already mentioned. Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in any way resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007”.
25. On 20 August 2009 the applicant’s Counsel advised that as follows:
“In the judgment at paragraph 25 on 22 May 2009, the learned judge emphatically concluded that:
‘Article 3 was not, in the circumstances, engaged, and in any event a complaint that Article 3 might be engaged, because of the complainant’s version that he was not in anyway resisting arrest, was one which should have been raised, if ever, promptly after the 1 March 2007.’
The application having been refused emphatically twice by the High Court, I was unable to advise that there were greater that 50% prospects of success in renewing the application to the Court of Appeal and therefore public funding was no longer available. My view is that it is very likely that the Court of Appeal would have also rejected the application on the basis of delay.
I should note that in a very similar case (Morrison) where the mode of investigation was challenged at the start of the process and where a full hearing is due to take place in October 2009, the IPCC has now conceded that the use of a taser in similar circumstances did, indeed, amount to an arguable breach of Art 3.
However, in Mr Fox’s case he is now in the situation where an investigation which did not comply with Article 3 concluded in September 2008 and he has now exhausted his domestic remedies in seeking to establish that his Article 3 rights have been breached.”
26. The applicant did not seek to challenge the withdrawal of legal aid. Nor did he seek to renew his application for permission to apply for judicial review to the Court of Appeal.
27. In May 2008 the applicant’s solicitors instructed a consultant psychiatrist to prepare a medical report setting out the injury suffered by the applicant as a result of the arrest. The report, dated 11 June 2008, concluded that the applicant was suffering from post-traumatic stress disorder as a result of the force used by the police officers who arrested him.
28. On 14 May 2010 the County Court granted the applicant permission to commence a civil claim for damages for assault against the Commissioner of Police for the Metropolis in relation to the injuries caused by the use of a taser gun. Permission was however refused in relation to the applicant’s other injuries.
29. The IPCC was established by the Police Reform Act 2002. Under the 2002 Act, the IPCC is required, once a complaint is referred to it, to determine whether an investigation is required and, if so, in what form, having regard to the seriousness of the alleged misconduct and the public interest (Schedule 3, paragraph 15).
30. The possible forms of investigation are (a) an internal (local) investigation by the police force in question; (b) an investigation under the supervision of the IPCC; (c) an investigation under the management of the IPCC; (d) an investigation by the IPCC. In a “supervised investigation”, the investigating police force proposes an investigating officer and terms of reference which must then be approved by the IPCC. The IPCC conducts a regular review of the investigation, but responsibility for maintaining the record of decisions and for conducting a timely investigation rests with the force. A “managed investigation” involves the IPCC setting the terms of reference in consultation with the police force. The investigating officer is nominated by that force but must be approved by the IPCC. Paragraph 17(2) of Schedule 3 to the 2002 Act provides that the person selected can be a member of the same police force as the investigated officers or of a different force. Once appointed, the investigator is under the direction and control of the IPCC and responsibility for maintaining the record of decisions and ensuring a timely investigation is conducted rests with the IPCC. While there is the possibility of an appeal to the IPCC in connection with a local or a supervised investigation, there is no such right of appeal following an investigation carried out or managed by the IPCC itself, although judicial review is available.
31. As regards the appropriate mode of investigation in cases raising issues under Articles 2 and/or 3 of the Convention, paragraph 21 of the Code in force during the time of the events in question stated as follows:
“European Convention on Human Rights
21. Where the alleged conduct of a person serving with the police has resulted in death or serious injury Articles 2 and 3 of the European Convention on Human Rights may be engaged. If they are engaged, the IPCC, as a public authority under the Human Rights Act 1998, has an obligation to determine a form of investigation that is an effective independent investigation that does not have any hierarchical or institutional connection with those implicated in the events. It would only not have to do that where there has been an inquest that satisfied Article 2. An independent investigation into a death conducted by the IPCC itself would satisfy the requirement of independence under Article 2. An IPCC managed investigation into a death involving the police would satisfy the requirement of independence under Article 2 of the Convention provided that it was conducted by an external police force. Not all death or serious injuries that occur following contact with the police will engage Article 2 or 3. For example where the death was obviously from natural causes or the police contact was sufficiently remote from the time of the death or serious injury.”
32. The facts in Morrison v The Independent Police Complaints Commission & Ors [2009] EWHC 2589 (Admin) were as follows. In the early hours of 29 June 2008 The claimant was driving home with a friend when their car was stopped by the police. The officers were involved in a pre-planned operation, following information that the occupants of the car had a firearm. Officers stated that the claimant was non-compliant and would not show his hands and appeared to be trying to get something from his waist. The claimant denied this and alleged that the officers used excessive force by using a taser on him three times. Following his arrest he was taken to hospital where he was found to have injuries to his left lower jaw, requiring two to three stitches; a bruised and swollen left eye; skin removed down the right side of face; cuts to arms, wrists and hands; a swollen wrist; and taser injuries. No charges were brought against him. He complained to the police that excessive force had been used during the arrest. The police referred the matter to the IPCC. The IPCC initially took the view that the severity of the injuries did not meet the threshold of Article 3 and decided that the complaint should be investigated locally. The claimant applied for judicial review of that decision. Shortly before the hearing, the IPCC amended its defence to accept that there was an arguable case that the claimant had suffered ill-treatment contrary to Article 3. However, the IPCC argued that the investigation required by Article 3 could be fulfilled by a number of measures taken together: a local investigation; an appeal to the IPCC if the complainant was dissatisfied with the outcome of the local inquiry; the possibility of criminal proceedings and the possibility of civil proceedings.
33. In his judgment of 26 October 2009, Nicol J commented as follows on the use of tasers by the police:
“9. The Taser is a pistol-like device which shoots two probes from an attached cartridge. Wires are attached to the probes. When the trigger is pulled an electric charge of some 50,000 volts is passed through the wires and, if the probes have become attached to the subject, through his body. The electric pulse lasts for some 5 seconds, or longer if the trigger is held down. The Taser can also be operated by holding it against the body of the subject. This is known as the ‘drive stun’ mode. It is the method which the Claimant alleges was applied to him about three times.
10. The electric charge can cause intense pain. It also (and this is said to be its principal attraction for the police) incapacitates its subject. The electrical stimulus causes an uncontrollable skeletal muscle contraction which will make the individual lose control of his body. This lasts as long as the charge is applied. It stops when the charge stops, although the person concerned may be dazed and confused for a while longer. There may also be small burn marks on the skin nearest to the probes.
11. The introduction of Tasers goes back to the Patten Report in 1999 (‘A New Beginning: Policing in Northern Ireland’) which had called for substantial investment in research to find an acceptable, effective and less potentially lethal alternative to the plastic baton round. Tasers were developed in the United States. They were first used in the UK in 2003. Originally, their use was confined to firearms officers. A somewhat wider use of them is allowed now by specially trained units (at least in some police forces). It was firearms officers who used them on this occasion, but the Claimant relies on the potentially wider use of Tasers as one reason why this incident merits particularly careful investigation.
12. The use of Tasers is closely monitored. Every incident in which a Taser is deployed (whether discharged or not) is reported to the Association of Chief Police Officers (‘ACPO’) and the Home Office Scientific Development Branch. A panel of independent medical experts reviews periodically the use of Tasers. They comment that no deaths or serious injuries attributed to Taser use have occurred since the introduction of the device in 2003. They assess the risk of death or serious injury from the use of Tasers within the ACPO Guidance and Policy as very low. It is not zero as there have been two reported incidents in the USA of subjects who sustained fatal head injuries as a result of Taser-induced falls. ACPO guidance is that Tasers should only be used where officers are facing violence or threats of violence of such severity that they need to use force to protect the public, themselves or the subject.
13. The IPCC’s approach to the use of Tasers has varied over time. In 2003 when they were first introduced, the IPCC’s predecessor, the Police Complaints Authority, required the police to refer to it any incident in which a Taser had been discharged. The PCA supervised the first few investigations into Taser use because of the considerable public interest, but since that time the vast majority of matters have been sent back to the police force concerned for local investigation. In 2005, the IPCC changed the criteria for referral. They were brought into line with referrals where firearms were discharged i.e. referral to the IPCC was required whenever their use: (i) resulted in death or serious injury; (ii) caused danger to the public; or (iii) revealed failings in command. Police forces could, of course, voluntarily refer other uses of Tasers to the Commission. In September 2007, the IPCC responded to the pilot project to allow specially trained units (and not just firearms officers) to use Tasers. In the forces which participated in the pilot, the IPCC required all public complaints concerning the use of Tasers to be referred to it. In November 2008 the extension on use of Tasers to specially trained units was applied nationally. In consequence, from 1st June 2009, the IPCC requires any complaints involving the use of Tasers to be referred to it.”
Nicol J found that, on the facts of the case, a procedural duty arose under Article 3, for the following reasons:
“30. ... I have to say that I do not regard the experiences of the Claimant as anywhere near the borderline that is perhaps represented by minor bruising or scratches. It is not disputed that Tasering can cause intense pain (albeit briefly). The photographs of the Claimant show that he suffered significant cuts, not least to his face and head. Of course, if the police used no more than reasonable force to effect his arrest and/or to deal with a threat to public safety, there would be no breach of Article 3, but if his account is correct and he was compliant and there was no reasonable basis to suspect that he had immediate access to a weapon, subjecting him to treatment of that kind was a serious matter.”
Nicol J commented with regard to the resource implications of requiring the IPCC to carry out an investigation in all cases involving a arguable claim that excessive force had been used by the police :
“45. I was not provided with an estimate of how much an independent investigation by the IPCC would cost in this case. I am prepared to assume that it will be less than the [the cost of an ad hoc public inquiry], but the difference is likely to be only one of degree. A managed investigation (which, as I have said was the fall back alternative proposed by the Claimant) may be somewhat cheaper, but, once again there were no precise figures. Independent investigations (and I assume the Commission’s costs in relation to a managed investigation) are paid for out of the IPCC’s budget, whereas local investigations are funded locally. More significantly, there are a very large number of complaints about the use of excessive force by the police when effecting an arrest. Between April 2008 and February 2009, this was a feature of some 772 conduct or complaint cases referred to the Commission. Currently very few of these are investigated by the IPCC itself, but if the threshold for a breach of Article 3 is now as the Commission understands it to be and if the present claim is upheld then a very significant proportion of those complaints would have to be investigated by the Commission itself. That would put an impossible strain on the Commission’s budget.”
Having reviewed the relevant principles relating to the procedural obligation under Article 3, Nicol J dismissed the claim, as follows:
“71. It is accepted that the Claimant suffered significant pain and injuries which, if not justified in the circumstances, would amount to the infliction of inhuman or degrading treatment contrary to Article 3. He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Metropolitan Police will not be independent. However, if the investigation were to lead to the prosecution of the officers concerned, the criminal trial would be (or, at least, could be) the effective investigation which Article 3 requires. Furthermore, if the Claimant’s mother (who made the complaint to the police about his treatment) is dissatisfied with the information which is provided to her, with the findings of the local investigation or with its outcome, she can appeal to the IPCC. That is a route which is regularly used by complainants and with some success. It increases the possibility that there will be a prosecution. It also allows for the chance that any deficiency in the local investigation can be remedied. All of this means that it cannot be said at this stage that the IPCC’s direction that her complaint should be examined locally will inevitably breach the Claimant’s right to an effective investigation. I would not have held that the possibility of civil proceedings by the Claimant was a means of providing the investigation required by Article 3. The European authorities reject the possibility and comments to the contrary in the domestic authorities were not necessary for the decisions in those cases. However, whether I am right or wrong about the relevance of the possibility of civil proceedings is beside the point. The other reasons which I have given are sufficient for my conclusion that this application must be dismissed.”
Leave was granted to the claimant to appeal against this decision to the Court of Appeal but it does not appear that the appeal was pursued to judgment.