ITEMID: 001-5150
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JAGER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1958, currently serving a prison sentence in The Hague. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.
A.
On 24 November 1994, the partially undressed body of the nine-year-old girl F. was found on a path along a railway near allotments in The Hague. The post mortem examination carried out on the same day resulted in a finding that it was likely that she had died on 24 November 1994 between 7.30 and 9.30 a.m. from a loss of blood caused by stab wounds. The autopsy conducted on 25 November 1994 confirmed this finding.
On 25 and 28 November 1994 respectively, the deputy public prosecutor (hulpofficier van justitie) ordered the police to conduct a search of the crime scene and the adjacent allotments. A plaster cast was made of the bicycle tire tracks found at the crime scene. No other traces were found.
On 25 November 1994, Ms A. gave a statement to the police to the effect that, at around 8.20 a.m., she had seen the victim, a friend of her daughter, sitting on the back of a pink lady’s bicycle ridden by a man. She gave a description of this man’s features and clothes.
Given certain factual similarities of the killing of F. and the killing of a young girl in 1980 of which the applicant had been found guilty, the police placed him under observation as from 26 November 1994. On 6 December 1995, upon request of the public prosecutor, a preliminary judicial investigation (gerechtelijk vooronderzoek) against the applicant was opened. On 20 December 1994, the applicant was arrested and detained on remand. On that occasion the police also seized, amongst other items, a coat and a pink and white lady’s bicycle found in the applicant’s home.
The police interrogated the applicant repeatedly. During some of these interrogations in January 1995, the interrogating police officers used a specific interrogation technique; the so-called “Zaanse verhoormethode”. The applicant did not make any confession statement.
Upon the order of the deputy public prosecutor, the ditches in the area of the crime scene were searched on 18 January 1995, which resulted in the finding of a blade, apparently broken off a pocket knife. Furthermore, on 23 January 1995, a pocket knife with a missing blade was found in a ditch.
On 25 January 1995, the forensic laboratory informed the investigating authorities that the bicycle tire tracks found on the crime scene globally corresponded with the rear tire of a bicycle seized in the applicant’s home, but that no characteristic similarities had been found. The front tire of the bicycle seized did not correspond with the tracks found.
On 16 February 1995, the forensic laboratory informed the investigating authorities that fibres discovered in the pocket knife found on 23 January 1995 corresponded, given the colour and material, with a coat seized in the applicant’s home and that the blade found on 18 January 1995 could have caused the stabbing holes in the victim’s clothes.
According to a report of 16 March 1995 by the forensic laboratory on the investigation of fibres found on the coat seized in the applicant’s home on 20 December 1994 and the coat of the victim, it was very well possible that both coats had been in contact with each other.
At some unspecified point in time, the applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of The Hague on charges in relation to F.’s killing.
By judgment of 6 April 1995, following adversarial proceedings, the Regional Court convicted the applicant of murder and sentenced him to life imprisonment. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of the Hague.
On 27 September 1995, the Court of Appeal took evidence from the applicant, from the witness Ms A. and from the expert-witness H., an official of the forensic laboratory.
On 22 November 1995, the Court of Appeal granted the request of the defence to be provided with copies of the tapes of the applicant’s interrogations by the police. It further ordered the applicant’s examination at the Psychiatric Observation Clinic of the Prison System (Psychiatrische Observatiekliniek van het Gevangeniswezen).
On 3 April 1996, the Court of Appeal rejected a request by the defence to make funds available to the defence in order to enable the defence to commission one or more experts.
In its report dated 1 May 1996, the Psychiatric Observation Clinic stated, inter alia, that the applicant was suffering from a serious personality disorder with narcissistic, dependent and anti-social features. It was further found that he was incapable of adequately expressing his aggression and to regulate his aggression when such feelings would emerge. Consequently, his behaviour could be both impulsive and explosive. The report also stated that there continued to be a distinct likelihood of repetition of aggressive behaviour towards women and girls.
On 22 May 1996, the Court of Appeal took evidence from Ms B., a psychologist who had examined the applicant in the Psychiatric Observation Clinic over a period of seven weeks. She declared, inter alia, that the applicant’s examination had disclosed a great discrepancy between his verbal and performal IQ, which expressed itself in the applicant’s case by a specific disorder, i.e. a nearly total inability to read and write. In her opinion, there were no indications that this disorder caused mental problems in other areas. She stated that, for instance, his capacity for concentration was very good and that he was able to compensate his handicap by a reasonably good memory.
On the same day, the Court of Appeal took evidence from two police officers who had been involved in the applicant’s interrogations and from Mr H. Hoenderdos, the communication expert who had assisted the police in their interrogations of the applicant.
By judgment of 5 June 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 6 April 1995, convicted the applicant of homicide and sentenced him to fourteen years’ imprisonment with deduction of the time spent in pre-trial detention. In addition, the Court of Appeal imposed a post-sentence confinement order (“TBS-order”; terbeschikkingstelling) with compulsory treatment at public expense (met bevel tot verpleging van overheidswege).
The Court of Appeal rejected the request by the defence for an adjournment of the court’s examination in order to seek further evidence from experts as to the applicant’s mental health, interrogation techniques and the forensic findings. It held on this point that this concerned in fact requests for a counter-expertise and considered that the defence had had sufficient opportunity to obtain this. It concluded that the criminal investigation authorities had carried out sufficient investigations and that it considered itself to be sufficiently informed.
As regards the admissibility of the prosecution, the judgment of 5 June 1996, insofar as relevant, reads:
<Translation>
“The examination of the arguments submitted by the defence consist of two parts, those submitted by Mr Sandberg (I) and those submitted by Ms Later (II).
(I). According to Mr Sandberg, the public prosecution department must be declared inadmissible in its prosecution, because the actions of the police and the prosecution in the criminal investigation are, to a too large extent, contrary to the requirements of a fair trial.
In the first place, the combination of a) premature investigatory activities and b) the manner of interrogation (use of the “Zaanse verhoormethode”) constitutes a gross violation of the prohibition of pressure set out in Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering) and of the requirements of a fair trial (Article 6 of the Convention).
Secondly, by keeping secret the use of the “Zaanse verhoormethode” and the calling in of the expert Hoenderdos, the finding of truth has suffered to such an extent that, also on that ground, it can no longer be held that there has been a fair trial.
…
1.a. As from 26 November 1994, the suspect has been observed for about one month, during which several “indications” have been gathered. This observation was an unlawful act of investigation, as on that moment the suspicion of guilt was absolutely insufficient. The suspicion of <the applicant> was only based on the fact that there appeared to be similarities in the modus operandi between the present fact and the fact of 1980. This comparison is, however, incorrect.
1.b. Although the defence suspects that the “Zaanse verhoormethode” has been used as from the outset, the objections of the defence are aimed in particular at the interrogations having taken place on 14 and 15 January 1995 under the direction of Mr Hoenderdos. At the beginning of the interrogation on 14 January 1995, the birthday of the suspect’s daughter who is about the same age as the victim (creative extension of the collage of photographs of family and victim), the first hours are spent talking about trivialities. Subsequently the thumbscrews are tightened and the suspicion is brought up. By sitting close to the <suspect>, by the interrogators’ encircling of the <suspect>, unbridled pressure is exerted on the <suspect>. Despite the emotionally deplorable situation of the suspect, the interrogators have pursued the interrogations in as much as possible. The particular personality features of the suspect have in no way been taken into account.
This manner of interrogation is unlawful and in violation of the prohibition of pressure.
2. According to the defence, the police and justice <department> consider the named Hoenderdos as an expert. His appointment only becomes apparent in the public prosecutor’s official report of 14 May 1996; also the investigation judge, who was aware of the calling in of Hoenderdos, has remained silent about this. Both the police officers involved and the investigation judge should have recorded in minutes the activities of Hoenderdos - the judge (and also the defence) need to be enabled to verify the application of methods and means of investigation - and further Hoenderdos should have made a report. …
The court rejects these arguments.
Ad 1.a. The following has appeared during the trial:
On 24 November 1994, near the allotments complex Loolaan … in The Hague, the victim was found, the upper part <of the body> dressed, jeans and underpants pulled down. She was killed by a large number of stab wounds, no traces of sexual violence were found. A partially broken off bush was found at a distance of some meters. The girl had been seen some hours earlier with a man <sitting> on the back of a bicycle. On 26 November 1994, one of the police officers involved in the investigation checked the police administration for facts that, qua modus operandi, were similar to the present case. He found the following: In 1980, in the dunes near …, a seven-year-old girl was found dead, she was partially undressed, pants and underpants had been pulled down. She had been killed by stab wounds, no traces of sexual violence were found. The girl was covered with branches. In relation to these facts, the accused was placed at the Government’s disposal (ter beschikking van de regering gesteld).
It was subsequently determined that the applicant’s home is located at a distance of about four kilometres from the <present> crime scene. Two police officers involved in the investigation … on 26 November 1994 … saw the applicant looking outside through the window <of his home> and found that he resembled a composition drawing made on the basis of a witness statement. The court considers that the foregoing constituted a sufficient suspicion of guilt for further investigatory activities against the suspect. In that context … the suspect was observed for some time on 9 and 19 December 1994. … There is no question of a premature prosecution activity, so that the <applicant’s> observation by the police neither in itself nor in combination with the manner of interrogation constitutes a violation as argued.
Ad 1.b. As to this <point> the following has appeared during the trial:
In January 1995 Hoenderdos, a communication expert, has become involved in the case because the team that interrogated the accused had internal problems and because the investigation had reached deadlock.
In the week before the weekend of 14 and 15 January 1995 Hoenderdos has spoken for the first time with the team and has offered his assistance in the interrogation of the suspect. The only time he had available for this was this weekend. In that weekend, the suspect has been interrogated at length during which the team members sat close to him. In an adjacent room, the interrogation was watched and listened to by Hoenderdos, who drew the police officers’ attention to various communication signals. During this interrogation use was made of collages of photographs in which, inter alia, three photographs of the suspect’s family members were displayed around a photograph of the victim. The court considers this use of family photographs in a collage of this kind contrary to the requirements of a fair trial. The infringement of these requirements thus made is - also in the light of the exceptional seriousness of the fact - in the court’s opinion neither in itself nor in connection with what has appeared in respect of the interrogations of such gravity that this should lead to the inadmissibility of the prosecution.
Ad 2. It has not appeared from the case-file or otherwise that the police and justice <department> (and the investigating judge) considered Hoenderdos as an expert within the meaning of Article 227 of the Code of Criminal Procedure. A report by Hoenderdos is therefore not required.
The court further considers that - apart from the question whether this was required - that the suspect’s rights have not been neglected as argued by the failure to mention the assistance by Hoenderdos, as the use of the contested collage of photographs appears already sufficiently from the case-file.
Counsel has referred in various places, in support of his pleadings, to the European Convention of Human Rights and the case-law of the European Court of Human Rights. Also considered along those lines, the court does not reach other findings than those set out above.
(II) Apparently in the context of her primary argument that the public prosecution should be declared inadmissible, counsel Ms Later, in addition to what Mr Sandberg has already submitted in relation to the European Convention of Human Rights, has argued that in this case various other provisions of the Convention have been violated.
a) Counsel has placed the manner of interrogation of the suspect by the police and the use of the so-called method “Hoenderdos” in the context of Article 3 of the Convention; inhuman treatment.
…
d) Article 6 para. 3 sub b would be violated because the defence has insufficient facilities. This provision is submitted in conjunction with
e) Article 6 para. 1, access to court, which provision is violated because, for lack of financial means, the suspect has in fact not been enabled to defend himself in the proceedings.
f) By the withholding of information, in particular information about the method “Hoenderdos”, the principle of fair trial and in particular <the principle of> equality of arms, Article 6 para. 1, has been violated, also by the public prosecutor’s selection of investigation data, the public prosecutor’s approaching of the judges’ chamber about a judicial on-site inspection and the conducting of a search of the premises of the Social Fund for the Building Industry without informing the defence of this.
g) Finally a violation of Article 5 of the Convention is argued, because there was insufficient indication of guilt, so that the <suspect’s> situation of detention must be considered as contrary to this provision.
Ad a. The court has already expressed itself about the use of the method “Hoenderdos” in the present case and the consequences to be attached to this.
Noting the seriousness of the act committed, the court considers the intensity of the interrogations not of such a nature that these <interrogations> justify the qualification of inhuman treatment.
…
Ad d and e. After the preparation of the case before the court, it has been examined for the first time on 27 September 1995. Subsequently, on 22 November 1995 and 22 May 1996, further examinations on the substance have taken place. Taking into account that the case must be dealt with within a reasonable time, the court considers that the defence has been provided with sufficient facilities during that period to investigate what it wished to investigate.
The counter-investigations at the expense of <the> justice <department>, as wished by the suspect, have been refused by the court, since the contention that the suspect has a right to a counter-expertise at the State’s expense finds no support in the law. On that ground, the absence of facilities and financial means cannot have as consequence the inadmissibility of the prosecution.
Ad f. It has not been established that information, essential for his defence, has been withheld from the suspect. As to the withholding of information about the method “Hoenderdos” the court refers to it remarks already stated above. It has also not been established … that there has been an unbalanced compilation of the case-file. That the defence was not informed of a request by the prosecutor for a judicial on-site inspection and <that the defence> has not been informed, prior or during this search, of the search of the premises of the Social Fund for the Building Industry cannot lead to the inadmissibility of the prosecution. The circumstances are thereto of insufficient weight.
Ad g. In the light of the following decision of the court, this <point> does not warrant examination.”
The Court of Appeal based the applicant’s conviction on, inter alia, his evidence to the trial courts, statements made by the witness Ms A. to the police and the court, and on police and forensic reports. On the basis of the cruelty of the facts, the applicant’s diminished responsibility at the time of the offence and the high risk that the applicant would repeat aggressive behaviour towards women and girls, the Court of Appeal decided to impose not only a criminal sanction but also a post-sentence confinement order with compulsory treatment at public expense.
The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 13 May 1997.
As to the applicant’s complaint that the Court of Appeal had unjustly held that there had been a fair trial and equality of arms between the public prosecution and the defence, the Supreme Court held that the Court of Appeal had correctly found that the use of the “Zaanse verhoormethode” was incompatible with the requirements of a fair trial. It further accepted as correct the Court of Appeal’s findings as to the question whether there were sufficient suspicions against the applicant to justify further investigatory measures.
As regards the manner in which the applicant had been interrogated by the police, the Supreme Court did not exclude that, under certain circumstances, unlawful activities of the criminal investigation and prosecution authorities could result in such a serious violation of the principles of a fair trial that these should lead to the inadmissibility of the prosecution. However, such a far reaching sanction could only follow where it would concern serious violations of those principles by, deliberately or with gross negligence, disrespecting the suspect’s interests in his right to a fair hearing of his case. In the impossibility to give a general rule on this point, this question needed to be examined on a case to case basis.
After having noted the Court of Appeal’s findings in the present case as to the interrogations at issue and in particular the specific part which the Court of Appeal had correctly found to be in violation of the requirements of a fair trial, the Supreme Court accepted the Court of Appeal’s conclusion that these interrogations were not of such a nature that it should result in the inadmissibility of the prosecution.
The Supreme Court further considered the applicant’s complaint that the defence had not sufficiently been enabled to avail itself of investigatory possibilities in that the Court of Appeal had rejected his request to make funds available to him in order to allow him to take initiatives aimed at obtaining a counter-expertise whereas he did not have any funds himself to do so. He explained that he had wished to submit counter-expert evidence in relation to the investigation made of his personality, on some material evidence and on the interrogation method used by the police.
The Supreme Court noted that the applicant had had several possibilities during the pre-trial stage of the proceedings to obtain, at the State’s expense, further investigations and further counter-expert evidence. The Supreme Court further noted that the experts, who had carried out an examination of the applicant’s personality or the material evidence, had been heard before the trial court and that the defence had been able to put questions to them. As regards the interrogation technique used by the police, the Supreme Court noted that the applicant’s statements used in evidence were statements given either before the investigating judge or before the trial court.
The Supreme Court held that, in these circumstances, the Court of Appeal’s rejection of the applicant’s requests for further expert evidence on the basis of a finding that the investigation had been sufficient could not be regarded as unreasonable. It further considered that the Court of Appeal had correctly held that the applicant’s contention that the State has to bear the costs of any investigation requested by the defence, in its generality, is not supported by the law and that this is not in conflict with Article 6 of the Convention.
The Supreme court also considered that the Court of Appeal had rejected on correct grounds the arguments raised by the defence about withholding information to the defence and the compilation of the case-file.
B. Relevant background and domestic law
Article 29 of the Code of Criminal Procedure, insofar as relevant, reads:
<Translation>
"1. In all cases where a person is heard as a suspect, the questioning judge or civil servant shall refrain from everything which could have the effect of obtaining a statement of which it could be said it was not freely made. The suspect is not obliged to answer.
2. Before the hearing the suspect is informed that he is not obliged to answer.
…”
On 15 May 1996, following the national broadcast of a television programme in which the “Zaanse verhoormethode” was discussed, a Member of Parliament put questions about this interrogation technique to the Minister of Justice, who decided to seek the views of the Criminal Investigation Advice Commission (Recherche Adviescommissie; hereinafter “RAC”) as to the lawfulness and functionality of this method.
On 21 August 1996, the Minister of Justice informed Parliament that, once she would have taken notice of the final outcome of two trials in which the lawfulness of this method had been raised as well as the RAC advice, she would take a final decision as to the acceptability of this interrogation technique. In the meantime, she had instructed the public prosecution department to suspend the use of this technique. In November 1996, in conformity with the advice contained in the RAC report of 1 November 1996, the Minister of Justice decided to prohibit the use of the “Zaanse verhoormethode”.
The RAC report describes the “Zaanse verhoormethode” as an interrogation technique based on the so-called CASE 36 (Communication Analysing System Europe 36) communication method. The method was developed by a communication expert and was further elaborated for police practices.
CASE 36 is described in the report as a communication method focussing in particular on the way in which a person internally perceives the outside world. The application of the CASE 36 technique allows to obtain a very accurate picture of the behaviour of a person and the internal processes on which this behaviour is based, thus enabling to communicate effectively (a correct statement by the suspect) and efficiently (within a short time).
The CASE 36 technique is based on Neuro Linguistic Programming (NLP); originally a form of psychotherapy. NLP has been defined as “the study of the structure of subjective experience”. NLP provides a model of human behaviour and communication which answers questions like “How does a person behave in relation to his environment, how does he take in information and how does he process this information?” An interrogation according to the CASE 36 communication method is aimed at the creation of a tie between the suspect and interrogators through which an optimal communication must become possible and thus to attain the truth via communication.
The actual interrogation is prepared by planning certain steps to be taken during the interrogation. This planning includes, amongst other things, the allocation of individual roles (father figure, specialist, analyst, person of confidence) to each member of the interrogation team. Furthermore, a preliminary meeting with the suspect takes place in order to find out which pattern of thought (in detail or global) he uses and what his “focal points” are, i.e. to what points he looks when he is not specifically asked to look at something. A determination of “focal points” is relevant for the making of “visual chronological lines”.
In having the suspect draw (visual) chronological lines during the interrogation, it is attempted to verify when what has taken place. This takes place, inter alia, by making a suspect relive an experience in his mind. If a suspect has a auditive preference, there is a bigger chance of communication and a reliving when he is made to listen to recordings, like telephone conversations. Has the suspect a sensory preference, the chance of communication is bigger when having him touch an object found at the crime scene, whereas in case of a visual preference, he can be shown photographs of the crime scene.
In case a suspect has a “focal point” on a particular spot on a wall, it is possible to place photographs there. He will unconsciously look at them after which, as the intention is, he will remember facts insofar as he has been responsible for them. The showing of photographs includes both photographs connected to the offence and photographs linked to the suspect’s person, like photographs of his spouse or children. These two kinds of photographs are either shown separately or combined with each other.
The interrogation team leader and the external communication expert watch and listen to the interrogation in another room. There are four hidden cameras covering the entire interrogation room and one hidden camera aimed at the suspect’s face. The suspect is informed that the interrogations are recorded but does not know where the cameras are. The interrogators receive instructions via earphones from the team leader or the external communication expert during the interrogation. The interrogation is constantly adapted to the suspect’s behaviour. The suspect’s non-verbal communication is followed and whether his behaviour is congruent, i.e. whether his body language is in conformity with his verbal expressions. Other features of this interrogation technique are the copying of a suspect’s physical behaviour which is intended to reassure the suspect and the so-called “pushing in”, i.e. to push one by one and at a deliberate moment the chairs of each interrogator close to the suspect until in the end all interrogators sit intimately around the suspect.
The interrogations are conducted within a couple of days, lasting on average ten hours per day depending on how the interrogation proceeds.

Under Article 37a-e of the Code of Criminal Procedure, a trial court may - in addition to a criminal sanction and if the protection of public order so requires - issue a confinement order (TBS order) in respect of a perpetrator of an offence, who has been found guilty and who has been found to have a mental disorder and to be dangerous. A TBS order can include a separate order for compulsory treatment at public expense.


ITEMID: 001-58242
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF T.W. v. MALTA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. The applicant, T.W., is a United Kingdom national, born in 1943. At the relevant time, he resided in Luqa, Malta, and was a storekeeper.
8. On the evening of Thursday 6 October 1994, at approximately 8.30 p.m., he was arrested by the police.
9. On Friday 7 October 1994 the applicant was brought before a magistrate of the Court of Magistrates. The charge was read out by a police inspector and alleged that the applicant had defiled his minor daughter (an offence involving sexual acts) and committed acts of violent assault on her. The applicant pleaded not guilty.
10. After the hearing, the applicant contacted a lawyer who arranged to meet with him the next day, 8 October, which was a Saturday. On the morning of Monday 10 October 1994 the applicant’s lawyer filed a written application for bail. It stated that the applicant lived in Malta, was employed there, and although he had problems with his Maltese wife he had nevertheless very good relations with his in-laws. There was no fear of him absconding. Even if he were to go to the United Kingdom, extradition provisions would make it impossible for him to avoid being brought to trial if the Attorney-General decided to indict him. The application further stated that the applicant strenuously denied the charges and was being detained on the basis of mere unfounded allegations. The magistrate before whom he had been brought had no power to order his release. He had not been assisted by a lawyer and his application was being filed with the registry of the Court at the first opportunity. He requested the court to release him as there were no reasons justifying his continued detention.
The application was immediately sent to the Attorney-General who was given twenty-four hours in which to reply.
11. On the same day, that is on 10 October 1994, the Attorney-General, by a declaration in writing, stated his opposition to the applicant’s release.
12. Still on 10 October 1994, a magistrate of the Court of Magistrates took the decision to reject the applicant’s bail application. The recollection of the magistrate is that this decision was taken either late in the morning or early in the afternoon of 10 October 1994. The magistrate in question was not the same magistrate before whom the applicant had appeared on 7 October 1994 and had not himself examined the applicant. On 11 October 1994 the registrar of the Court of Magistrates entered the second magistrate’s decision in the court’s records.
13. On 20 October 1994 the second magistrate began hearing evidence and on 25 October 1994 he ordered the applicant’s release on bail.
14. On 8 May 1995 the Court of Magistrates convicted the applicant and gave him a two-year suspended prison sentence. On 8 January 1996 the Court of Criminal Appeal upheld the applicant’s conviction.
15. Section 137 of the Criminal Code provides as follows:
“Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall, on conviction, be liable to imprisonment for a term from one to six months.”
16. In its judgment of 7 January 1998 in Carmelo Sant v. Attorney-General the Constitutional Court rejected the appellant’s argument that section 137 of the Criminal Code only provided for a penalty and not for a remedy. According to the Constitutional Court, if the way in which this section had been applied were to be examined, the conclusion would be the same as that reached by Chief Justice John J. Cremona. The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of Malta, there are in the Maltese Criminal Code two provisions, namely sections 137 and 353 which, taken together, may be regarded as providing an equally effective safeguard of personal freedom.
17. The parties before the European Court referred to the following examples of cases in which section 137 had been invoked.
On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section 1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked section 137 of the Criminal Code, requested the Court of Magistrates to order the acting registrar of the court and the Commissioner of Police to bring Cremona before the court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request.
Ibrahim Hafes Ed Degwej, later christened Joseph Leopold, invoked section 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application.
On 28 April 1997 Joachim sive Jack Spagnol relied on section 137 of the Criminal Code to challenge the lawfulness of his prolonged detention pending an investigation into his assets, which had been sequestrated by court order. He claimed that the detention had been unduly prolonged. Moreover, he asserted that he had very little property. On 28 April 1997 the Court of Magistrates transmitted the case file to the Attorney-General and abstained from further consideration of the application.
On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed:
“As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to section 137 of the Criminal Code.” (unofficial translation from Maltese)
18. Moreover, the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person’s release. The magistrate had this obligation by virtue of the provisions of section 137 of the Criminal Code. Every person in Malta was assured that an arrest could not last beyond forty-eight hours and the appearance before the magistrate ensured that if the arrested person had any submissions to make, he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority. In connection with habeas corpus decisions, under section 137 of the Criminal Code the magistrate did not need to hear the Attorney-General. However, since this was an adversarial procedure where the prosecution was led by the police, the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms. This was a power quite separate and distinct from the power to grant bail. If the arrest was found by the magistrate to be unlawful then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise. Only if there was nothing to show that the arrest was unlawful did the question of bail arise.
19. Section 353 of the Criminal Code, read together with section 137, is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus (see paragraph 16 above). Section 353 addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows:
“353. (1) Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.
(2) Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.”
20. The powers of the Court of Magistrates in respect of arrested persons who are brought before it under section 353 of the Criminal Code were discussed in extenso in the Ellul case.
On 23 December 1990 Nicholas Ellul, who had been arrested on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment, was brought before the Court of Magistrates. He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful.
This request was dealt with by the Court of Magistrates on the same day in the following manner:
“The procedure which should be followed by the Court of Magistrates as a Court of Inquiry is set out in sections 389 to 409 of the Criminal Code. Subsection (1) of section 390 provides how proceedings should start before this court: it ‘shall hear the report of the police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report’. The time-limit for the conclusion of this inquiry is one month as indicated in section 401. In no way is the Court bound to hear any evidence in support of the report. Moreover, the fact that the prosecuting officers confirm the report on oath is meant to satisfy the Court that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him.
This Court does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges; after all, in this contest, the word ‘report’ means ‘charge’. This is the procedure followed in this case and it is the correct procedure.
Consequently, the Court declares that the requests of the person charged are unfounded and therefore rejects them.” (unofficial translation from Maltese)
Mr Ellul lodged a constitutional application arguing that there had been a breach of Article 5 § 3 of the Convention. On 31 December 1990 the First Hall of the Civil Court found that Article 5 § 3 did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person’s arrest had been made on a reasonable suspicion. Moreover, the court considered that Article 5 § 3 did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest. On 8 January 1991 the Constitutional Court upheld the decision of the First Hall of the Civil Court.
21
“According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution.
The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees.
Therefore what the defence is requesting is outside the functions of this Court.
Having regard to sections 574(1), 575(2) and 582(1) of the Criminal Code, the Court declares itself not competent to comply with the request and directs the person charged, that if his request for release is to be considered, he has to comply with what is provided in the sections herementioned.” (unofficial translation from Maltese)
22. The Criminal Code contains the following sections concerning bail:
“574. (1) Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place.
…
575. ...
(2) The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney-General on the same day, whenever it is made by –
...
(c) persons accused of any crime punishable with more than three years’ imprisonment…
(3) The Attorney-General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition.
…
576. The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable.
577. (1) Security for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed.
(2) It may also be given, whenever the court shall deem it proper, by the mere deposit of the sum or of an equivalent pledge, or by the mere recognisance of the person accused.
…
582. (1) The Court may not ex officio grant bail, unless it is applied for by the person charged or accused.
…”
23. By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta.
24. In its Aquilina judgment of 13 June 1994, the Constitutional Court held that judges in Malta have to take into consideration the case-law of the European Court of Human Rights.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-73112
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PAZON v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Hedigan
TEXT: 5. The applicant was born in 1976 and lives in Rogatec.
6. On 5 August 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZTi.
7. On 19 April 1999 the applicant instituted civil proceedings against ZTi in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,011,648 Slovenian tolars (approximately 8,400 euros) for the injuries sustained.
On 10 December 1999 and 13 November 2002 the applicant lodged preliminary written submissions.
On 10 April and 3 October 2001 he made requests that a date be set for a hearing.
Of the two hearings held on 12 April 2002 and on 20 November 2002, neither was adjourned at the request of the applicant.
During the proceedings, the court appointed a medical expert.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 January 2003.
8. On 7 February 2003 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 10 March 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 23 March 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112021
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GOLOVAN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 6. The applicants are spouses. They were born in 1968 and 1965 respectively and live in Donetsk. The first applicant is a lawyer practising in Ukraine. He is the President of the law firm Pravis, subsequently renamed Golovan and Partners.
7. The applicants are the co-owners of a flat which, at the material time, was used by the first applicant as his office. The deed of ownership was issued in the name of the second applicant.
8. In February and April 2005 the first applicant entered into legal services agreements with a company, K. Under those agreements K. transferred to the first applicant certain documents concerning its commercial activity.
9. On 4 April 2005 the investigator of the Slovyansk Tax Office instituted criminal proceedings against the officials of company K. for alleged tax evasion and forgery of documents.
10. On 19 April 2005 the investigator issued a search warrant for K.’s documents in the office of the first applicant. The warrant was approved by the Prosecutor of Kramatorsk. In the reasoning part of the search warrant the investigator noted that it had been established in the course of pre-trial investigation that a number of bookkeeping, tax accounting and other documents had been stored at the first applicant’s law office.
11. The warrant authorised the search and seizure of the following material:
“contractual documents, bookkeeping documents, primary and summary accounting documents, tax accounting and other documents which concern the relationships between [K.] and [company D.] as regards the delivery of electricity by the latter to the former company in the period from 1 January 2001 to date; decisions and other procedural documents issued in the same period by the commercial courts when dealing with disputes between the two companies.”
12. On 5 May 2005 the investigator, the tax police officers, and two attesting witnesses arrived at the first applicant’s office to carry out the search. The first applicant objected to the search. He stated that the flat was private property and, accordingly, any search of it could be carried out only on the basis of a court decision, as required by Article 177 of the Code of Criminal Procedure. He further stated that the documents requested by the investigator had been entrusted to him by K. in his capacity as the company’s lawyer and, by virtue of section 10 of the Bar Act, could not be seized without his consent.
13. The investigator ignored the first applicant’s objections and commenced the search. In the course of the search a number of K.’s documents, including some dated before 2001, were seized.
14. The two attesting witnesses countersigned the search report compiled by the investigator. The witnesses were born in 1984 and at the relevant time were studying at the Donbas Machinery Building Academy. Subsequently, in the course of “pre-investigation” enquiries, the two witnesses confirmed that the first applicant repeatedly informed the investigator that the searched premises were the individuals’ private property.
15. On 6 May 2005 the seized documents were attached to the criminal case file as material evidence.
16. On 2 August 2005 the decision of 4 April 2005 instituting criminal proceedings against the officials of company K. was quashed as unfounded.
17. On 6 and 11 May 2005 the applicants complained to several prosecutors’ offices at various levels about the search of their premises. They requested that criminal proceedings be instituted against those who had carried out the search.
18. On 25 May and 8 July 2005, 23 February, 4 April and 25 August 2006, 23 March and 15 June 2007, 28 March, 5 September and 3 October 2008, 20 April 2009, 19 March, 9 April and 9 August 2010 and 4 March 2011 the prosecutor’s offices adopted decisions refusing to open criminal proceedings against the investigator and the police officers involved in the search. According to those decisions there was no indication that criminal offences under Articles 162, 364, 365, and 397 of the Criminal Code had been committed. The latest decision specified in particular that at the time of the search the flat had been used as business premises, while the documents had been seized as evidence in the criminal case and therefore could not be covered by the lawyer-client privilege.
19. All those decisions were quashed as unfounded, either by the supervising prosecutor or by the court. In quashing the impugned decisions the supervising authorities relied on the provisions of the Code of Criminal Procedure requiring preliminary court authorisation for the search of an individual’s premises and on those of the Bar Act safeguarding the professional secrecy afforded to lawyers.
20. In particular, on 27 December 2011 the Voroshylovskyy District Court of Donetsk, quashing the prosecutor’s decision of 4 March 2011 refusing to open criminal proceedings, found that the prosecutor’s office had failed to take into account the fact that the searched flat was owned by private individuals and that, pursuant to domestic legislation, any search of it could be carried out only on the basis of a court decision. Besides, the materials of the enquiries suggested that the seized documents had been entrusted to the first applicant in the course of his activity as a lawyer and had been covered by lawyer-client privilege. The court therefore concluded that the search and the seizure of documents had been carried out unlawfully. The court remitted the case for additional “pre-investigation” enquiries, for the adoption of the proper decision under Article 97 of the Code of Criminal Procedure.
21. On 23 January 2012 the Court of Appeal upheld that decision of the first-instance court, adding that the investigative authorities had not yet examined whether the investigator had seized documents which had no relevance to the criminal case against the officials of company K.
22. Article 30 of the Constitution provides:
“Everyone shall be guaranteed the inviolability of his or her dwelling.
Any entry into, examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision.
In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching in the dwelling or other possession of a person.”
23. Article 162 of the Code provides:
“1. Unlawful entry into, examination of or searches in a dwelling or other possession of a person, unlawful eviction or any other actions violating the inviolability of a citizen’s home –
shall be punishable by a fine of fifty to one hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by a restriction of liberty for up to three years.
2. The same acts, if committed by officials... –
shall be punishable by imprisonment for two to five years.”
24. Article 364 of the Code, as worded at the relevant time, provided:
“1. Abuse of power or office, namely intentional use, for financial gain or with other personal interest or in the interest of third persons, by an official of his/her power or office against the interest of the service, if it has caused serious damage to State or public interests or to lawful interests, rights and freedoms of natural or legal persons, –
shall be punishable by up to two years’ correctional labour or by up to six months’ detention or by a restriction of liberty for up to three years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities. ...
2. The same acts, if they have caused grave consequences, –
shall be punishable ...
3. Acts as described in paragraphs 1 or 2 of this Article, if committed by law-enforcement officers, –
shall be punishable by imprisonment of between five and twelve years, with a prohibition of up to three years on holding certain posts or performing certain activities, and with confiscation of property.”
25. Article 365 § 1 of the Code, as worded at the relevant time, provided:
“The exceeding of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons –
shall be punishable by up to two years’ correctional labour or by restriction of liberty for up to five years, or by imprisonment for between two and five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities.”
26. Article 397 of the Code provides:
“1. Any obstruction of defence counsel or another representative in the course of his/her lawful activities in providing legal assistance, or a violation of the lawful guarantees of his/her activities and professional secrecy –
shall be punishable by a fine of one hundred to two hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by up to six months’ detention, or by a restriction of liberty for up to three years.
2. The same acts, if committed by officials in the performance of their duties –
shall be punishable by a fine of three hundred to five hundred times the amount of the non-taxable minimum-level income or a restriction of liberty for up to three years with a prohibition of up to three years on the holding of certain posts or the performance of certain activities.”
27. Article 4 of the Code provides:
“The court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been identified, take all necessary measures provided by law to establish whether a crime has been committed, identify the perpetrators, and punish them.”
28. Under Article 28 of the Code, a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant in criminal proceedings shall be exempt from the court fee for the lodging of a civil claim.
29. The relevant parts of Article 97 of the Code provide:
“A prosecutor, investigator, body of inquiry or judge is obliged to accept applications or communications regarding crimes which have been committed or planned, including in cases that are outside its competence.
Following an application or communication in respect of a crime, the prosecutor, investigator, body of inquiry or judge is obliged, within a three-day time-limit, to adopt one of the following decisions:
(1) to institute criminal proceedings;
(2) to refuse to institute criminal proceedings;
(3) to remit the application or communication for further examination according to jurisdiction.
...
In the event that it is necessary to examine the information or communication in respect of a crime before initiating criminal proceedings, such an examination shall be conducted by a prosecutor, investigator or body of inquiry, within a time-limit of ten days, by obtaining statements from individual citizens or officials or by requesting the necessary documents. ...”
30. Article 114 of the Code provides that in the course of the investigation the investigator shall make all the decisions on his own as regards the direction of the investigation and the investigative actions that should be taken, except in cases where the law requires approval by the court or the prosecutor.
31. Article 127 of the Code provides, inter alia, that in the course of the search at least two witnesses should be present. The witnesses should be unbiased. The witnesses cannot be chosen from among the victims, their relatives, the relatives of the suspect or the accused or officers of the body of inquiry or investigation.
32. Article 177 of the Code provides:
“... A search in a person’s home and other possession may be conducted only on the basis of a reasoned court decision, except for urgent cases. ... A court decision authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days.
In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the search may be performed without a court decision. The search report shall state the reasons for its performance without a court decision. Within twenty-four hours the investigator shall refer a copy of the search report to the prosecutor. ”
33. Article 236-1 of the Code provides:
“Complaints against a decision of a body of inquiry, investigator, or prosecutor refusing to open criminal proceedings shall be lodged with the district (city) court ... by the person whose interests are affected, or by a representative of that person, ... within seven days of receipt of the decision or of information from the prosecutor that he refused to quash the decision.”
34. Article 236-2 of the Code provides:
“Complaints against a decision of a prosecutor, investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within ten days of the arrival of the case file at the court.
The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date on which it will be examined. If necessary a judge shall hear explanations from the person who lodged the complaint. A verbatim record of the hearing shall be drawn up.
... a judge shall take one of the following decisions:
1) to quash the decision refusing to open criminal proceedings and return the case file materials for additional [“pre-investigation”] enquiries;
2) to reject the complaint.
A judge’s decision in this regard may be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or a complainant. ...”
35. Section 10 of the Act provides that documents relating to a lawyer’s professional activity may not be examined, divulged or seized without the lawyer’s consent.
VIOLATED_ARTICLES: 13
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-70694
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ÖZATA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violations of Art. 6-1 (lack of oral and adversarial hearing);No violation of Art. 6-1 (length of proceedings);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 5. The applicant was born in 1948 and lives in Ankara.
6. The applicant was arrested in Antalya on 21 November 1995 by the police officers from the Prevention of Terrorism Department of the Antalya Security Directorate, on suspicion of being a member of the PKK. She was kept in police custody until 29 November 1995.
7. In the evening of 29 November 1995, right after her release from police custody, the applicant went to a private hospital to be treated. According to the medical reports dated 30 November 1995 and 1 December 1995, drafted by the doctors who were involved in her treatment, the applicant stayed in the hospital for three days as she was suffering from hyper-tension. Moreover, it was also noted that she was diagnosed with neurotic anxiety. It was suggested for her to rest for three more days.
8. On 25 December 1995 the İzmir Public Prosecutor at the State Security Court dropped the charges against the applicant, on the ground of lack of evidence.
9. On 13 February 1996, invoking Articles 1 § 6 and 2 § 1 of the Law No. 466, the applicant brought an action before the Antalya Assize Court against the Treasury, requesting compensation for her unlawful arrest and detention which lasted eight days. She claimed 500,000,000 Turkish Liras (TRL) to compensate for her non-pecuniary damages and 11.820,000 TRL for her hospital expenses.
10. On 19 July 1996, after consulting the written opinion of the Public Prosecutor, the Antalya Assize Court held that the applicant be awarded compensation for her hospital expenses and 30,000,000 TRL for her non-pecuniary damages, calculated on the basis of her personal, financial and social status.
11. The applicant and the treasury both appealed against the award. The applicant contended on appeal that the amount of compensation was insufficient for her wrongful arrest and detention. The Treasury considered that the amount awarded was excessive.
12. On 19 March 1997 the Principal Public Prosecutor submitted his opinion on the merits of both parties' appeals. He advised the court to quash the first-instance judgment. He held that the expenses incurred in a private hospital should not be reimbursed. Moreover, in view of the relevant case law, he considered the compensation awarded for non-pecuniary damages to be excessive.
13. On 27 May 1997 the Court of Cassation quashed the judgment on the ground that the Assize Court rendered its decision without first establishing whether the applicant's hyper-tension was caused by her detention in police custody.
14. On 4 July 1997 the court decided to obtain medical opinion concerning the cause of applicant's illness. Moreover, the Public Prosecutor was asked for his written observations on the applicant's claim.
15. Two medical reports, dated 27 October 1997 and 3 December 1997 and drafted by the doctors who treated the applicant, were submitted with the Antalya Assize Court. They confirmed the fact that the applicant was hospitalised in November 1995 for three days and that she was diagnosed with hyper-tension and neurotic anxiety which were aggravated due to the detention conditions.
16. On 13 January 1998 the court questioned the two doctors who were responsible for the applicant's treatment. The doctors confirmed that both the hyper-tension and the neurotic anxiety were health problems of which the applicant must have suffered well before her detention period. However, they also confirmed the aggravating effect of the detention conditions on these illnesses. The court requested the Forensic Department at the Ministry of Justice to examine the case file and submit its comments.
17. On 27 April 1998 the third specialization committee of the Forensic Department concluded that they were unable to determine for certain whether the hyper-tension and the neurotic anxiety were the applicant's existing health problems prior to her detention in police custody. It therefore referred the case file to a different committee of the Forensic Department.
18. According to the fourth specialization committee's report of 20 December 1999, which was submitted to the court on 27 March 2000, both the hyper-tension and the neurotic anxiety were not caused by detention conditions.
19. On 8 June 2000, in view of the report dated 20 December 1999, the Antalya Assize Court held that the applicant be awarded only compensation for non-pecuniary damages. In light of the facts of the case and having considered the applicant's financial and social status, as well as the intensity of her emotional suffering, the court awarded the applicant 30,000,000 TRL by way of compensation for her non-pecuniary damages
20. On 28 June 2000 the applicant appealed against the judgment, claiming that she must have been awarded both pecuniary and non-pecuniary damages together with the interest. She further requested the Court of Cassation to hold a hearing.
21. In his written submissions of 30 November 2000 the Principal Public Prosecutor at the Court of Cassation recommended to the court to dismiss the applicant's claims as well as her request for a hearing. It argued that the applicant's case did not concern a criminal issue which would require holding a hearing at the appeal level. The public prosecutor, nevertheless, advised the court to quash the decision of the Assize Court for procedural reasons.
22. On 12 December 2000 the Court of Cassation followed the opinion of the Principal Public Prosecutor and quashed the decision of the Antalya Assize Court.
23. On 2 January 2001 the case was resumed before the Antalya Assize Court. The Public Prosecutor advised the court to reject the applicant's claim for pecuniary damages and grant her compensation for her nonpecuniary damages.
24. On 30 May 2001 the Assize Court awarded the applicant 30,000,000 TRL of non-pecuniary damages together with interest.
25. On 30 July 2001, reiterating her previous reasons, the applicant appealed against the judgment. On 28 November 2001 the Principal Public Prosecutor at the Court of Cassation recommended to the court to uphold the decision of the criminal court.
26. On 24 December 2001 the Court of Cassation, having regard, inter alia, to the opinion of the Principal Public Prosecutor, upheld the judgment of 30 May 2001.
27. According to information submitted by the Government, the applicant never applied to obtain the compensation awarded to her by the Antalya Assize Court.
28. A description of the relevant domestic law at the material time can be found in Göç v. Turkey ([GC], no. 36590/97, §§ 27-34, ECHR 2002V).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5853
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SMITH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Beatrice and John Smith, are United Kingdom nationals, born in 1962 and 1960 respectively and living in Headcorn, Kent. They are represented before the Court by Mr P. Kingshill, a lawyer practising in London. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are Romany gypsies.
Between 12 February 1990 and 15 August 1993, they were tenants in conventional housing in Swanley, in west Kent.
On or about 13 May 1993, they took up residence on their own land to the north west of Lenham Road, Headcorn, Kent, in two caravans with their four children.
On 18 May 1993, the applicants lodged a retrospective planning application for the stationing of a residential caravan on their land. Maidstone Borough Council (“the Council”) refused the application. On 2 July 1993 and 12 August 1993, the Council issued enforcement and stop notices.
The applicants appealed against the refusal of planning permission and against the enforcement notices. Those appeals were dismissed on 11 April 1994. In his decision of that date, the Inspector who had held a public planning inquiry, found that the development eroded the very rural character of the area and harmed the environment. He extended the period of compliance from two weeks to four months noting that it would not be in the interests of the children to be uprooted from school within the usual 14 day period.
On 10 June 1994, the applicants pleaded guilty to the offence of failing to comply with the stop notice. The first applicant was fined 3,000 pounds sterling (GBP) and ordered to pay costs of GBP 870. The second applicant was conditionally discharged. On appeal, the first applicant's fine was reduced by the Court of Appeal to GBP 500 and the costs order quashed.
On 29 June 1994, the applicants submitted a second application for planning permission, which was refused by the Council.
In August 1994, the applicants enquired about housing with the Council and homelessness application forms were sent to them. They were advised of a vacancy on the Stilebridge Caravan Site. This vacancy was again notified on 13 September 1994 and on 14 October 1994 a housing officer visited the applicants' land and offered them the pitch on the Stilebridge Caravan site. The applicants refused. On the applicants' evincing interest in housing options, the Council offered to them on 27 October 1994 a three bedroomed property at Mangravet.
On 26 April 1995, the applicants' appeal against the refusal of planning permission was dismissed after a public Inquiry by a Planning Inspector. The Inspector found the site constituted sporadic development in open countryside and was detrimental to the appearance of the rural area. He noted that the second applicant had been offered, but had declined, a site on a public site in the Maidstone district and was not satisfied that he would be led into breaking the law if planning permission was not granted.
On 7 July 1995, the Council issued proceedings in the High Court claiming an injunction, restraining the applicants, inter alia, from stationing caravans and continuing residential occupation on their land. An ex parte injunction was granted on the same day, restraining the applicants from stationing caravans on their land.
On 7 August 1995, the High Court adjourned the injunction proceedings. The Council subsequently withdrew the proceedings.
By letter dated 12 January 1996, the Council informed the applicants that it was considering exercising its powers under section 178 of the Town and Country Planning Act 1990. In that month, the applicants enquired of the Council as to the possibility of housing in Headcorn.
On 15 February 1996, the applicants made a third application for planning permission which was refused in or about late March/April 1996. The applicants appealed.
On 21 March 1996, the Council offered the applicants a three bedroomed house in Sutton Valence. The applicants refused.
On 15 April 1996, the Council sent a letter to the applicants' solicitors stating that the applicants had refused an offer of housing and that the Council would proceed shortly to action under section 178. On 16 April 1996, the Council evicted the applicants from their land pursuant to their powers under section 178. They again offered the applicants the possibility of moving to the house in Sutton Valance. The applicants refused.
Having nowhere else lawfully to station their caravans, the applicants moved their caravans onto the village green at Headcorn. This was an area of public amenity owned by the Parish Council, including a childrens' play area and equipment. Complaints were made by local residents inter alia concerning the coming and going of vehicles over the pavement and close to the childrens' play area.
On 17 April 1996, the Council served the applicants with a direction under section 77 of the Criminal Justice and Public Order Act 1994. The applicants complied with the direction, removing themselves from the green. They stationed their caravans on the unmade roadway leading to the village hall, which was also land owned by the Parish Council. A further direction was served under section 77 on 18 April 1996. The applicants complied with the order and moved to a car park in the centre of the village owned by a local firm and used as the main village car park by shoppers and visitors to the village. On 19 April 1996, the site owners decided to close the car park for reasons of public safety. This caused problems of congestion and traffic difficulties. A third direction under section 77 was served on the applicants on 22 April 1996, following which they moved to Parsonage Meadow. When a travelling circus arrived with permission to camp, the applicants left voluntarily and moved onto land adjoining Oak Farm Gardens. The Council received a complaint from the owner who said that he had not given permission. They took no action however as there were no issues of public safety involved. On 11 June 1996, complaints were received that the applicants had moved back onto Parsonage Meadow. On inspection the Council found that there were two other families with the applicants, and that three caravans, two transit vans, a pickup truck, a four wheel drive vehicle and a horsebox were stationed on the land. On 13 June 1996, a direction under section 77 was issued, forcing them to move on.
They were prevented from returning to their land by another court injunction obtained by the Council on 22 April 1996.
The applicants applied for leave to apply for judicial review of the Council's decision to take steps to secure compliance with the enforcement notices. Shortly before the hearing listed for 19 July 1996, the Council offered to treat the applicants as being unintentionally homeless persons to whom they owed a duty under the Housing Act 1985. The applicants were advised by their counsel and solicitors that there were minimal prospects of success in pursuing their application for judicial review and that the Legal Aid Board would cease to fund their application. In view of their lack of any viable alternative, the applicants reluctantly withdrew their application.
The Council offered the applicants a three bedroom flat which was available. The applicants did not consider that this was suitable accommodation. The applicants went to live in their caravan in the small rear garden of a relatives's house in Headcorn.
On 21 and 30 January 1997, a Planning Inspector held a public inquiry into the applicants' outstanding application for planning permission for their land. He had visited the site and also the applicants' present abode which he described as unsatisfactory for both the family and their neighbours although it allowed the children to continue with their schooling. The Inspector noted that the applicants' land had highway access and that the development would not harm existing housing. While due to the hollow in the ground the development would be less obvious than on the previous site, he found that it would nonetheless form an intrusive feature and would harm the character of appearance of the rural landscape. He noted that the applicants had purchased the land encouraged by Government policy and that it was necessary, partly for health reasons, to find a more satisfactory location for the family. While he acknowledged that gypsies were a special case and sites for residence could be acceptable in some rural locations, he was not satisfied that their case was so overriding as to outweigh the development plan policy requirement to protect the countryside in this particular location. He dismissed the appeal.
The applicants bought a house in Headcorn and are now resident there.
The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994).
Councils were told that:
“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (paragraph 20)
However:
“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies. ...” (paragraph 22).
It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).
Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments”:
“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ...
8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.
9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”
Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.
Section 77 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as
“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent”.
Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).


ITEMID: 001-95768
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GLINOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1978 and is currently serving a sentence in Rivne Regional Penitentiary no. 76.
8. According to the applicant, he was detained and ill-treated in police custody from 19 to 21 October 2003. There are no further details or documents.
9. In the evening of 31 October 2003 the applicant, together with another person, was arrested by the Fontanka police unit of the Kominternovo District Police Department in flagrante delicto on the scene of a robbery and car hijacking. As it would later be confirmed by at least two eye-witnesses (see paragraph 23 below), the applicant attempted escaping from and showed resistance to the police.
10. According to the applicant, he pleaded guilty to several counts of robbery under torture. He alleged in particular that he had been heavily beaten with rubber truncheons, hanged with his arms twisted behind him and administered electric shocks.
11. On 1 November 2003 the applicant signed the arrest report in confirmation that his procedural rights had been explained to him.
12. On the same day the applicant was taken to the Kominternovo Temporary Detention Facility, where a doctor examined him and made a note that he had a bruise under his left eye.
13. On 4 November 2003 the investigator submitted to the Kominternovo Town Court (Комінтернівський районний суд – “the Kominternovo Court”) a motion on the applicant's detention as a preventive measure pending trial. The investigator noted that the applicant was suspected of having committed serious crimes (three counts of robbery with violence on 22, 26 and 31 October 2003), had no permanent place of residence and had a criminal record, and thus could hinder the investigation or abscond if at liberty. According to the investigator, the applicant had fully admitted his guilt.
14. On the same date the Kominternovo Court remanded the applicant in custody, having upheld the investigator's reasoning.
15. On 26 December 2003 the Kominternovo Court extended the term of the applicant's detention to four months, having referred to the necessity to complete the investigation.
16. On 15 June 2004 the applicant was committed for trial.
17. No further documents concerning the applicant's detention are available in the case file.
18. While having raised a general complaint about the conditions of his detention, the applicant did not describe them until in response to the information submitted by the Government.
19. According to the information provided by the Government, from 7 November 2003 to 3 November 2006 the applicant had been held in fifteen different cells, the smallest of which had measured 7.17 square meters (the applicant had spent three and a half months there, sharing with another inmate), while the largest one had measured about 34.1 square meters (where he had stayed for fifteen days, sharing with eleven other inmates). Each of the cells had a toilet separated from the living area, sufficient natural and artificial light, operational heating, ventilation, water supply and sewage system.
20. As it transpires from a note by the Odesa SIZO administration issued on an unspecified date, disinfection, disinsection and rat extermination were regularly carried out on the SIZO premises.
21. The Government provided seven colour photos of the cells the applicant had been detained in. The photos showed that the cells were clean and looked as if they had been repaired not long before the photos had been taken. They had sufficient natural light; the lavatories were separated from the living area and appeared to be clean.
22. The applicant contested the accuracy of the information submitted by the Government in so far as the number of inmates per cell was concerned and alleged that there had been more detainees in the cells than indicated by the Government. He also alleged that he had not been detained in the cells shown in the photos.
23. On 23 March 2006 the Malynovskyy District Court of Odesa (Малинівський районний суд – “the Malynovskyy Court”), to which the case had been transferred from the Kominternovo Court on an unspecified date, found the applicant guilty of three counts of robbery with violence, committed on 22, 27 and 31 October 2003 by a group of persons acting in concert, and sentenced him to fourteen years' imprisonment with confiscation of all his personal property. The court based its findings, inter alia, on the testimonies of the victims of all three instances of robbery, medical reports concerning the injuries they sustained during those robberies, as well as material evidence (certain items seized from the applicant and recognised by the victims as the stolen ones; two knives, a hammer and a sack discovered in the car, which the co-defendants had left immediately before their arrest). The court also heard two eye-witnesses of the applicant''s face noted on 1 November 2003 might have been sustained in the course of his fight with the police prior to his arrest.
24. On 22 May 2007 the Odesa Regional Court of Appeal (Апеляційний суд Одеської області) upheld that verdict.
25. The applicant appealed in cassation, alleging that his conviction was not based on solid evidence. The cassation appeal did not contain any allegation of ill-treatment in police custody.
26. No information about the final outcome of the proceedings has been provided by the parties. However, it appears from the case file that the Supreme Court found against the applicant.
27. The applicant's letters to the Court dated 30 March, 10 May, 9 June, 12 July, 28 November, 8 and 15 December 2005, as well as 20 March, 16 May and 3 November 2006, were accompanied by cover letters, signed by the Governor of the Odesa SIZO, which contained a brief summary of their contents (for example: “Please find attached a complaint by the accused, Glinov, concerning his rights and the conduct of the investigation in his case”, “... concerning his case and actions of the police officers”, “...concerning the judge's actions”, “... concerning the defence of his rights”, “... concerning the withdrawal of his case”, etc.).
28. The first page of each of the eighteen letters from the applicant to the Court bore the SIZO stamp with the dispatching date noted in handwriting (eight of those had been sent before 21 December 2005, the other ten on various dates after 21 December 2005 – see paragraph 38 below).
29. From May 2005 to March 2006 the Registry of the Court requested the applicant eight times to submit documents in substantiation of his complaints under Articles 3 and 5 of the Convention.
30. Each of the requests was followed by a letter from the applicant, in which he noted that: there were no copying facilities in the SIZO and that he would copy the documents by hand; the facts of his case were self-explanatory; the prospects of Ukraine's accession to the European Union were poor given the alleged violations in his case; and the witnesses allegedly required protection for unspecified reasons. The applicant made no explicit reference to the Court's requests.
31. The applicant's letters reached the Court on average two weeks to two months following their dispatch.
32. The case file contains copies of sixteen stamped certificates issued by Odesa-59 Post Office to the SIZO administration in confirmation that it had accepted correspondence from detainees (including the applicant) to be sent to the Strasbourg Court. It also contains copies of extracts from the SIZO logbooks of incoming and outgoing correspondence and “correspondence delivery acts” signed by the SIZO officials.
33. Between the end of December 2005 and April 2006 (with the exact date not documented due to a technical mistake), the Court received a ten- page letter from the applicant dated 13 December 2005, in which he outlined his vision for the reform of penitentiaries in Ukraine with a view of improving the conditions of detention. It was accompanied by a cover letter from the SIZO administration dated 15 December 2005, according to which its registered number was 5-3-G-1087. The case file contains a copy of a post office receipt of 16 December 2005 for the dispatch, inter alia, of letter 5-3-G-1087 from Mr Glinov.
34. By a letter of 15 May 2006, which reached the Court on 26 May 2006, the applicant sought the withdrawal of his application referring to “... the failure [of the SIZO administration] to forward [his] letter to the Court of 13 December 2005 in fifty-three pages; a partial change of the charges against [him] on 23 December 2005; a ruling of the court and ... the intense pressurising by the authorities ...”
35. On 23 May 2006 the Court sent a letter to the applicant informing him that his application had been struck out of the list by decision of Committee on 16 May 2006.
36. On 2 October 2006 the Court informed the applicant about the restoration of the application to the list of cases and its communication to the respondent Government on 25 September 2006.
37. Following the communication of the application to the Government, the applicant's correspondence with the Court continued, with some of his letters bearing the SIZO stamp (see paragraph 28 above).
38. Section 13 of the Pre-Trial Detention Act, before it was amended on 1 December 2005 (with the amendments having entered into force on 21 December 2005), had provided for monitoring by the administration of detention centres of applications, complaints and letters of detainees, with an exception of correspondence with the Ombudsman and with the prosecutor, which could not be monitored.
39. By the amendments of 1 December 2005 to the above Act, the list of exceptions was extended to include correspondence with the Court.
40. The Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities, approved by Order no. 13 of the State Department for Enforcement of Sentences of 25 January 2006, elaborates the above provision as follows:
“1.5. ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as with other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations or prosecution authorities, shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within twenty-four hours. ...
2.4. Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or prosecution authorities. Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as from other relevant international organisations of which Ukraine is a member or participant, from authorised persons of those international organisations or from prosecution authorities. ...”
41. Article 3 of the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights, ratified by Ukraine on 4 November 2004 and in force for it since 1 January 2005, reads as follows:
“1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court.
2. As regards persons under detention, the exercise of this right shall in particular imply that:
a) if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration;
b) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court;
c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom.
3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health.”
VIOLATED_ARTICLES: 8