ITEMID: 001-86233
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF McCANN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1968 and lives in Birmingham. The facts of the case as submitted by the parties are as follows.
7. In July 1998 the applicant and his wife became joint tenants of a three-bedroom family house owned by Birmingham City Council (“the local authority”). They were also secure tenants under the provisions of the Housing Act 1985 (see paragraph 20 below).
8. The marriage broke down early in 2001 and the applicant’s wife moved out of the house with the two children. On 5 April 2001, following a contested hearing at which the applicant was not represented, the court made a three-month non-molestation order and an ouster order requiring the applicant to leave the house, which he did. Mrs McCann and the children moved back into the house, but moved out again when on 14 April the applicant turned up at the house, used a crowbar to force entry and allegedly assaulted Mrs McCann and her friend. Criminal proceedings were brought against the applicant following this incident, but resulted in an acquittal when no evidence was put forward.
9. On 18 April 2001 Mrs McCann submitted to the local authority an application to be rehoused on grounds of domestic violence. On 8 August 2001 she returned the keys to the local authority with a note saying that she was giving up the tenancy. She and the children moved into another council house which had been allocated to them in accordance with the local authority’s domestic violence policy. The local authority visited the house and found that most of the fixtures had been removed so that in excess of 15,000 pounds sterling would be required to make it habitable. Thereafter, as far as the local authority was concerned, the property was uninhabited.
10. In November 2001 the applicant returned to the house and did a considerable amount of work to renovate it. His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local-authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit.
11. That application, dated 4 January 2002, was completed at the local-authority housing office. On the same day, a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The County Court judge who heard the local authority’s claim for possession found as a fact that Mrs McCann was not advised and had no understanding that the notice to quit would have the effect of extinguishing the applicant’s right to live in the house or exchange it for another localauthority property (see paragraph 19 below). Approximately one week later Mrs McCann wrote to the local authority seeking to withdraw the notice to quit, but it nonetheless remained effective.
12. The applicant was informed that the tenancy had come to an end, and he was given notice to vacate. On 11 June 2002 the local authority’s Allocations Officer Review Panel decided, inter alia, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, the applicant, who had no dependants living with him, would not qualify for a dwelling originally allocated to a qualifying family which had been rehoused.
13. On 11 October 2002 the local authority brought possession proceedings against the applicant in the County Court, which he defended on the basis that it was contrary to his right to respect for his home under Article 8 of the Convention to be evicted on the basis of the notice to quit.
14. In his judgment of 15 April 2003, the County Court judge held that under the common law and Housing Act (see paragraphs 19-20 below), the applicant had no defence to the authority’s claim for possession. Under Article 8 of the Convention, however, he cited previous case-law which held that in such cases, generally, the interest of the local authority as landlord and of other persons in need of social housing had been taken into account by the applicable common law and legislation, and that, provided that the local authority had acted lawfully, it was not open to a court to put aside a claim for possession, except in exceptional circumstances where it appeared that the former tenant’s Article 8 rights had not been properly considered. He noted the circumstances in which Mrs McCann had signed the notice to quit and observed that, if she had not been induced to sign it, the local authority would have had to apply for a possession order under section 84 of the Housing Act 1985 (see paragraph 20 below). It would then have been open to the applicant to seek to persuade the court that it would not be reasonable to grant the order; he and Mrs McCann could have given evidence regarding the alleged domestic violence; and he could in addition have raised such issues as his own housing needs and the need to provide accommodation for the children when they visited. In the circumstances, the judge held that the local authority had not acted as required by Article 8 § 2 of the Convention and he dismissed the claim for possession.
15. The authority’s appeal to the Court of Appeal was adjourned pending the outcome of proceedings before the House of Lords in London Borough of Harrow v. Qazi [2003] UKHL 43 (see paragraphs 22-25 below). On 9 December 2003 Lord Justice Mummery gave the judgment of the Court of Appeal in the present case, holding as follows:
“ ... Article 8 is not available as a defence to the possession proceedings, even though the premises in question were the ‘home’ of the occupant for the purposes of the Article. The Council acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy. There was no dispute but that the tenancy had been brought to an end by [the applicant’s wife’s] notice to quit. Under ordinary domestic law the Council had an unqualified right to immediate possession on proof that the tenancy of the premises had been brought to an end. The statutory procedure in section 82 of the 1985 Act, which is available to a localauthority landlord for terminating a secure tenancy, does not apply to a case where the secure tenancy has been terminated by the tenant’s notice to quit. That notice to quit was effective, even though the notice was signed without appreciating the consequences for the occupier of the premises.
This is not a ‘wholly exceptional’ case where, for example, something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction and the Council might be required to justify its claim to override the Article 8 right (see Qazi at paragraph 79 [paragraph 24 below]).”
16. The applicant applied for judicial review of the local authority’s decision of 4 January 2002 to procure a notice to quit from his wife, and of its decision of 11 June 2002 to issue possession proceedings. The application was refused on 23 September 2004. The judge found, inter alia, that the local authority had acted within its powers in seeking, through the wife’s notice to quit, to formalise the situation as regards the tenancy and that its decision to apply its domestic violence policy where domestic violence had been established by the existence of a non-molestation injunction and ouster clause was neither unlawful nor outside the range of decisions properly open to the local authority in all the circumstances. He concluded:
“I agree ... that the Court of Appeal effectively decided the relevant issues between Mr McCann and the Council and that this application is an attempt to resurrect them a second time. The Council is entitled to possession and this application for judicial review fails. ...
As for the generality, whether or not a decision can be challenged as a matter of law does not mean that it is not appropriate for a public authority to be as open as it can be. There is no reason why the Council’s policy should not be absolutely explicit, spelling out that the consequence of an application for rehousing will be a requirement to give notice to quit of the existing tenancy which will affect the rights of the remaining tenant or occupier and thereafter providing notice to that person. In that way, clarity will prevail and some of the concerns that have been expressed in this case avoided.”
17. Permission to appeal to the Court of Appeal was refused on 9 December 2004.
18. The applicant was evicted from the house on 22 March 2005.
19. In common law, where a valid notice to quit is given by one joint tenant, it has the effect of bringing the joint tenancy to an end, whether or not the other joint tenant knew of or consented to the service of the notice to quit (Hammersmith and Fulham London Borough Council v. Monk [1992] 1 All ER 1). Once a tenancy has been validly brought to an end, a former tenant remaining in the property is in law a trespasser and the landlord has a right to immediate possession.
20. By section 82 of the Housing Act 1985, a secure tenant of a local authority or other public authority, such as the applicant, has security of tenure. Under section 84(1) of the Act, a court shall not make an order for possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 to the Act. Ground 2(a) of Schedule 2 gives a ground of possession where a couple live in a dwelling-house, one or both is a tenant, one partner has left because of violence or threats of violence by the other, and the court is satisfied that that partner who has left is unlikely to return. Section 84(2) provides that the court shall not make an order for possession on one of these grounds “unless it considers it reasonable to make an order”.
21. According to Birmingham City Council’s Allocations Policy Manual
(§ 30.8):
“1. Where a relationship has broken down the tenant who is leaving the property must be asked to sign a relinquishing form. This has the effect of closing the ‘whole’ tenancy.
2. If the property remains suitable for the family left, [a new] tenancy can be granted.
3. If the property is not suitable (e.g. too large), the tenant should be offered alternative accommodation ...”
However, where there has been domestic violence, the Allocations Policy provides (§ 3.7.1):
“Domestic violence is included in the Department’s revised Conditions of Tenancy as a breach of the tenancy agreement. Action will be taken [against those] who have been found to have subjected another person to domestic violence. This could include perpetrators losing their home or being classed as intentionally homeless.”
It would be open to a person who has been made homeless following an allegation of domestic violence to challenge the truth of the allegation and claim that he has been made unintentionally homeless and that the local authority has a statutory duty to rehouse him.
22. London Borough of Harrow v. Qazi [2003] UKHL 43 similarly concerned the making of a possession order in respect of a council house held under a joint tenancy of a husband and wife. The marriage broke down and the joint tenancy came to an end when Mrs Qazi served a notice to quit. Mr Qazi was refused a sole tenancy by the local authority, but he nonetheless remained in occupation with his new family, and sought to resist possession proceedings on the ground that they constituted an interference with the right to respect for his home under Article 8 of the Convention.
23. The House of Lords were unanimous in holding that, despite the fact that the tenancy had come to an end, the property continued to be Mr Qazi’s home and Article 8 was therefore engaged. However, the majority (Lords Hope of Craighead, Millett and Scott of Foscote) held that Article 8 could not be relied upon to defeat the local authority’s proprietary or contractual rights to possession. Since the local authority had an unqualified right to immediate possession, there was no infringement of Mr Qazi’s right to respect for his home under Article 8 § 1 and so no issue arose under Article 8 § 2 as to justification. Alternatively, the effect of the authority’s proprietary or contractual rights was that any assessment under Article 8 § 2 would inevitably be determined in the local authority’s favour. The majority variously referred to a number of decisions of the Commission in which similar complaints, regarding the eviction of a former joint tenant from localauthority property after the joint tenancy had come to an end, had been declared manifestly ill-founded (see S. v. the United Kingdom, no. 11716/85, Commission decision of 14 May 1986, Decisions and Reports (DR) 47, p. 274; D.P. v. the United Kingdom, no. 11949/86, Commission decision of 1 December 1986, DR 51, p. 195; Ure v. the United Kingdom, no. 28027/95, Commission decision of 27 November 1996, unreported; and Wood v. the United Kingdom, no. 32540/96, Commission decision of 2 July 1997, unreported).
Lord Hope, having held that Article 8 was applicable, continued:
“... [I]n my opinion it does not follow that, on the facts of this case, there is an issue which must be decided within the domestic legal order by remitting the question whether any interference is permitted by Article 8 § 2 for decision by the County Court. ...
I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public-authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list, does not violate the essence of the right to respect for the home under Article 8 § 1. That is a conclusion which can be applied now to all cases of this type generally. ... It follows that the question whether any interference is permitted by Article 8 § 2 does not require, in this case, to be considered by the County Court.”
Lord Millett similarly held that:
“... In my opinion Article 8 is not ordinarily infringed by enforcing the terms on which the applicant occupies premises as his home. Article 8 § 1 does not give a right to a home, but only to ‘respect’ for the home.”
As regards the balancing exercise envisaged by Article 8 § 2 he stated:
“... [N]o such balancing exercise need be conducted when its outcome is a foregone conclusion. In the present case ... the local authority had an immediate right to possession. The premises were Mr Qazi’s home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to ‘respect’ for Mr Qazi’s home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck. ...”
Lord Scott concurred with Lords Hope and Millett, although on somewhat different grounds:
“In my opinion, the Court of Appeal, having correctly held that Mr Qazi had an Article 8 ‘home’, should have held that his rights under Article 8 could not prevail against the Council’s admitted and undoubted right to possession under the ordinary housing law. I would, for my part, have said that Article 8 was not, in these circumstances, applicable. But it could also be said that a possession order was ‘in accordance with the law’ and was necessary in order to protect and give effect to the Council’s right to possession. ... But it comes to the same thing. Article 8 cannot be raised to defeat contractual and proprietary rights to possession.”
24. As to the question of remedies in exceptional cases, Lord Hope referred (in paragraph 79 of the judgment) to Sheffield City Council v. Smart [2002] EWCA Civ 4, where the Court of Appeal had held, in a case where a non-secure council tenant was evicted following nuisance proceedings, that a challenge under Article 8 of the Convention to the local authority’s decision to serve notice to quit could be made by judicial review within the appropriate time-limits. Lord Hope continued by observing that the Court of Appeal in Smart had further held:
“... that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in the County Court who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified ... I wish to reserve my opinion as to whether it would be open to the tenant, in a wholly exceptional case, to raise these issues in the County Court where proceedings for possession were being taken following the service of the notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time-limit. The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy.”
Lord Millett also stated:
“In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant’s home.”
25. The dissenting minority (Lords Bingham of Cornhill and Steyn) held that, where there was a proposed interference with a person’s right to respect for his home, the question of justification, if raised, did fall to be considered and should, in the instant case, be remitted to the County Court. Both cited with approval the following extract from the judgment of the Court of Appeal in Sheffield City Council v. Smart (cited in paragraph 24 above):
“26. ... ‘Home’ is an autonomous concept for the purpose of ECHR [the Convention], and does not depend on any legal status as owner. Thus in these cases, the premises in Sheffield and Sunderland were without question the women’s homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants’ right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8 § 2.
27. Before proceeding to the issues arising under Article 8 § 2, I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of Article 8 § 1. It concerns the relationship between the two paragraphs of Article 8. I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute’s correct construction (here, Article 8 § 1) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation’s words mean. The first choice ... would entail a judgment that the Convention requirement was met at the Article 8 § 1 stage ... The second choice (accepting a prima facie violation of Article 8 § 1), which I prefer, entails a judgment that the more rigorous and specific standards set out in Article 8 § 2 have to be met if the court is to hold that the evictions are compatible with the appellants’ Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court’s task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in Article 8 § 1. I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose [the Human Rights Act 1998] was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the Article 8 § 2 standards. Such a process is demanded by the fullness of our municipal law of human rights.”
Lord Bingham nonetheless emphasised that the administration of public housing under various statutory schemes was properly entrusted to local housing authorities and that the occasions on which a court would be justified in declining a possession order would be highly exceptional. He concluded:
“If (contrary to the ruling of the majority of the House) effect were to be given to my opinion, I am confident that the housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden.”
26. In Kay v. London Borough of Lambeth; Leeds City Council v. Price, 8 March 2006, [2006] UKHL 10, the House of Lords constituted itself as a seven-judge committee (rather than five judges as usual) in order to revisit its decision in Qazi in the light of the Court’s judgments in Connors v. the United Kingdom (no. 66746/01, §§ 81-84, 27 May 2004) and Blečič v. Croatia (no. 59532/00, 29 July 2004; the latter judgment was subsequently referred to the Grand Chamber which found, on 8 March 2006, that because domestic remedies had not been exhausted, it was unable to take cognisance of the merits of the case). The Lords were unanimous in limiting their consideration to cases were the landlord was a public authority.
27. The majority (Lords Hope, Scott, Brown of Eaton-under-Heywood and Baroness Hale of Richmond) held that the judgment in Connors was not incompatible with the view of the majority in Qazi that there was no need for a review of the issues raised by Article 8 § 2 to be conducted by the County Court if the case was of a type where the law itself provided the answer, as in that situation a merits review would be a pointless exercise. In such a case, an Article 8 defence, if raised, should simply be struck out. However, in the light of the judgments in Connors and Blečič it was necessary to emphasise that a person evicted might have a defence to possession proceedings in exceptional cases, namely (a) where he challenged the domestic law as itself being incompatible with Article 8 (as in Connors); or (b) where he challenged the action of the public-authority landlord on public law grounds, on the basis that the authority’s actions constituted an abuse of power.
28. The minority (Lords Bingham, Nicholls of Birkenhead and Walker of Gestingthorpe) held that a defendant to possession proceedings brought by public authorities should be permitted in principle to raise an Article 8 defence during the County Court possession proceedings. Lord Bingham expressed it as follows:
“I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an Article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile.”
VIOLATED_ARTICLES: 8


ITEMID: 001-69392
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF LABZOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1956 and lives in Cheboksary. He used to work as a manager of a private building partnership. In April 2000 the police charged him with embezzlement. They accused the applicant of having fraudulently appropriated a tractor and a tank truck belonging to the partnership.
9. On 10 April 2000, the investigator in charge of the applicant's case interviewed the applicant and decided to put him in a remand prison. Since the applicant had had a heart condition during the interview, the investigator had to put him in a prison hospital instead.
10. Diagnosed with a coronary heart disease, the applicant spent the next 36 days in hospital UL-34/4. During this time, he was 14 times examined by a cardiologist and once by a neurologist. The doctors treated the applicant with medicines and made laboratory tests. As soon as the applicant's condition had stabilised, he was discharged from the hospital.
11. On 16 May 2000, the applicant was relocated to remand prison IZ-21/2 in Tsivilsk. The parties' descriptions of the prison and of the life in it differ.
12. According to the applicant, prisoners were delivered to the prison in armoured vans. Even though the heat outside reached 30oC, each van carried as many as 30–40 prisoners. The air in the vans was stuffy. Guards clubbed the prisoners and set the dogs on them. The prison building, built in the 18th century, had never been renovated. Dirt-ﬁlled floors let no air through. Cells were illuminated with 40 watt ﬁlament lamps, too dim to read by. The prison administration conﬁscated all the medicines the applicant had and gave no replacement.
13. According to the Government, the applicant was delivered to the prison in a van that could carry 22 prisoners. The air outside was cool, 6oC, and the van carried as few as 14 prisoners. The guards used no clubs or dogs. In 2002–03 the prison building was renovated: sanitary equipment was replaced, walls were repainted, a forced ventilation system was installed. During the applicant's stay in the prison, all cells were sufﬁciently lit with ﬁlament lamps. Windows were large enough to read and work by natural light. The temperature and humidity in the cells were within the established norms. The prison had a central continuous supply of potable water from its own artesian well. The quality of the water was routinely inspected by a bacteriological laboratory. Every cell had a cistern of potable water. In addition, daily at 7 a.m. and 4 p.m. prisoners received boiled drinking water. The applicant always had a separate bed, a mattress, a blanket, two sheets, a pillow, and a pillow-case. He could have shower at least once a week. After each shower, the applicant received fresh bedding and underwear. Prison doctors treated him and gave him necessary medicines. The applicant could not, however, have any medicines of his own.
14. On his arrival to the prison, the applicant was put in Cell 16, in which he spent half a day. The parties' descriptions of this cell differ.
15. According to the applicant, this cell was in a poor technical condition. Its floor was flooded with excrements.
16. According to the Government, this cell measured 19.3 m². It housed 20 prisoners, even though it was designed to house 10. There was a doubleglazed window of 115 × 95 cm. The window had a 115 × 20 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was ﬁxed 70 cm above the floor and could be reached by two steps. It was separated from the rest of the cell with a curtain and a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water.
17. In the evening of 16 May 2000, the applicant was relocated to Cell 49 in which he spent the next 29 days. The parties' descriptions of this cell differ.
18. According to the applicant, this cell measured 15 m². It housed, on average, 35–40 prisoners, even though it had only 20 beds. The prisoners had to take turns to sleep. Sleeping was impossible because the lights were always on, and because the prisoners listened to music and talked day and night. The windows were covered with metal blinds which let through too little light. No bedding, crockery, or cutlery was available. As the dinner table was small, the prisoners had their meals in shifts, often sharing the crockery with the ill. The food was hardly edible. Cock-roaches, ants, rats, mice, and lice abounded. Hot water supply was limited to 20 litres a day. The toilet was ﬁxed 1.2 m above the floor, right in front of the guards' peephole. As the guards were mostly women, using the toilet was a humiliation. The cell was overpopulated, and ﬁve prisoners suffered of dysentery. Therefore, the toilet was always occupied. Once in a fortnight, a prisoner could spend ﬁve minutes in a shower. Once a day, the prisoners had an hour-long walk in a small yard on the roof of the building.
19. According to the Government, this cell measured 21.2 m². During the applicant's stay, the cell on average housed 22 prisoners, even though it was designed to house 10. There were two double-glazed windows of 120 × 120 cm each. Each window had a 25 × 25 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was ﬁxed 25 cm above the floor. It was separated from the rest of the cell with a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water. There were no prisoners suffering from dysentery in the cell. Prisoners suffering from intestinal infections, vermin, veneral diseases, and acute tuberculosis were housed apart.
20. As the applicant's health had worsened, on 14 June 2000 he was relocated to a temporary detention unit, and on 16 June 2000 – back to hospital UL-34/4. He spent the next 36 days in the somatic ward of the hospital. During this period, a cardiologist examined the applicant 13 times and treated him. As soon as the applicant's condition had stabilised, he was discharged from the hospital.
21. On 22 July 2000, the applicant was returned to the prison and put in Cell 18 where he spent the next 2 days. The parties' descriptions of this cell differ.
22. According to the applicant, windows in this cell had no glass. Instead, they were tightly covered with halved metal tubes. Small holes in the tubes let through little light. The cell was located in the basement and had no ventilation. No bedding, crockery, or cutlery was available. The toilet was ﬁxed 1.8 m above the floor. Next to it stood a dinner table. As the cell housed as many as 78 prisoners, the toilet and the table were always occupied, often at the same time. Smokers made non-smokers' life a misery. Whenever someone fell unconscious, guards dragged him out into the corridor for a breath of fresh air.
23. According to the Government, this cell was located in the ground floor and measured 23 m². During the applicant's stay, the cell on average housed 17 prisoners, even though it was designed to house 10. There were two doubleglazed windows of 70 × 70 cm each. Each window had a 70 × 20 cm window leaf to ventilate the cell. In one corner of the cell there were a toilet and a wash-basin. The toilet was ﬁxed 45 cm above the floor and could be reached by a step. It was separated from the rest of the cell with a tiled wall, at least 1 m high. The toilet had flushing taps and central sewage. The wash-basin provided cold running water.
24. On 24 July 2000, the applicant was taken to the temporary detention unit for interrogation.
25. On 28 July 2000, he was returned to the prison and put in Cell 49 where he spent the next 4 days.
26. On 31 July 2000, the investigating authorities dropped the charges against the applicant under an amnesty law.
27. On 1 August 2000, the applicant was released.
28. In January 2003 the applicant left Russia for Strasbourg. The parties' accounts of the events preceding the departure differ.
29. On 20 December 2002, an investigating ofﬁcer of the Ministry of the Interior of the Chuvash Republic telephoned the applicant. Without naming himself, the ofﬁcer invited the applicant to an interview concerning a criminal investigation. The applicant was not aware of any investigations.
30. On 21 December 2002, K., a Deputy Director of the Economic Crimes' Department of the Ministry of the Interior of the Chuvash Republic, telephoned the applicant. He interrogated the applicant about his application to the Court. K. hinted that the applicant had better withdraw his case from the Court, or else the police would ﬁnd a pretext for a new criminal case and imprison him again.
31. On 23 December 2002, P., the Director of the Economic Crimes' Department, telephoned the applicant and invited him for an interview. During the interview, P. ordered the applicant with gestures to speak low because the room was bugged. Afraid to speak, P. wrote down all crucial phrases and showed them to the applicant. Such precaution not being enough, P. and the applicant continued their conversation in the corridor. P. told the applicant that he would start a new criminal case against him, imprison him, and let him languish to death. P. demanded the applicant to withdraw his application from the Court because it had troubled influential ofﬁcials of the Chuvash Republic.
32. On 26 December 2002, the applicant's car ran into four lorries. The applicant alleges that the accident must have been set up by his persecutors, because the trafﬁc police ignored it.
33. The accident convinced the applicant that the threats were serious. He and his wife went to Moscow, received French tourist visas, and left for Strasbourg to seek political asylum.
34. The applicant had to leave behind his minor daughter, a student, because she had no travel documents. After the applicant's departure, the police threatened to kill the daughter. She would have joined her parents in Strasbourg, but the parents wished her to ﬁnish the studies. As soon as the daughter had passed her ﬁrst-year exams, she received a travel passport and on 13 July 2003 came to Strasbourg.
35. On an unspeciﬁed date, D., the manager of the partnership defrauded by the applicant, requested the police to reinvestigate the applicant's case. He asserted that the investigation had been superﬁcial, and that the applicant had not made good the damage inflicted to the partnership.
36. In December 2002, K. and P., ofﬁcers of the Economic Crimes' Department of the Ministry of the Interior of the Chuvash Republic, invited the applicant for an interview in connection with D.'s allegation. Since the ofﬁcers had failed to record D.'s oral application formally, their superiors warned them.
37. The relevant extracts from the General Reports by the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps signiﬁcantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...
48. Speciﬁc mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...
50. The CPT would add that it is particularly concerned when it ﬁnds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufﬁcient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates ﬁtted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-58836
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF AVERILL v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 24 April 1994, at about 6.15 p.m., four men wearing balaclava masks, some of whom were armed with firearms, entered the bungalow of the Murphy family and, seizing the keys to their white Vauxhall Cavalier car, drove off in it. Ten minutes later, at 6.25 p.m., the white Vauxhall Cavalier stopped in front of two cars parked side by side on Main Street, Garvagh, and began shooting at the occupants. The drivers of both vehicles were killed, and a third person, in the passenger seat of one vehicle, was wounded.
10. At about 6.55 p.m. the police found a white Vauxhall Cavalier which had been set on fire. They discovered in the car two black and a dark blue balaclava masks, a pair of black gloves and four cartridge cases.
11. At 7.20 p.m., at an army checkpoint on Halfgayne Road, some eight miles from the spot where the abandoned vehicle was found, a red Toyota car was stopped. The car contained three men: Martin and Patrick Kelly and the applicant. About 7.45 p.m. a number of police officers arrived under the command of Sergeant Ford. On being questioned by Sergeant Ford, the applicant stated that he had been helping the Kelly brothers with sheep since around 1 p.m., that he had washed at the Kellys' and had something for tea there. He stated that he was going for a drink in town. The applicant was arrested under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and taken to Gough Barracks, Armagh. Access to a solicitor was deferred pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”) for a period of twenty-four hours. Thereafter, and up until he was charged, the applicant was seen daily by a solicitor.
12. Shortly after arrival at Gough Barracks, head hair combings were taken from the applicant and sent for forensic examination along with the clothes he was wearing at the time of his arrest.
13. The applicant was interviewed by police officers who cautioned him before each interview in terms of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). The applicant was told that:
“You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you wish to say anything, what you say may be given in evidence.”
14. The applicant was asked if he understood the caution and made no reply. He made no reply to questions about his movements on 24 April 1994 and about fibres from the balaclavas and gloves found on his hair and clothing. He maintained silence throughout the interview and throughout thirty-six further interviews, which took place between 25 and 30 April 1994. The applicant was denied access to legal advice during police interviews.
15. On 28 April 1994, during interview no. 20, a police constable cautioned the applicant pursuant to Article 6 of the 1988 Order, requesting him to account for his presence at Halfgayne Road about the time the murder of the two men in Garvagh was committed. The applicant was warned that if he failed or refused to do so, a court, judge or jury might draw such inference from his failure or refusal as appeared proper. The applicant made no response and refused to sign the written request. During the same interview, the applicant was cautioned, pursuant to Article 5 of the 1988 Order, in respect of adverse inferences which might be drawn from any failure to account for a number of fibres found on his person by means of a hair combing which linked him to the commission of an offence. During interview no. 36 on 30 April 1994, a caution was administered under Article 5 in respect of fibres found on the applicant's clothes which were forensically linked to material found in a Vauxhall Cavalier allegedly used by the culprits. The applicant made no reply and refused to sign the written request.
16. On 1 May 1994 the applicant was charged, inter alia, with the murder of M.A.S., and J.A.W.Mc., the attempted murder of P.J.S. and with possession of two loaded AKM assault rifles with intent. The applicant pleaded not guilty and was tried before Lord Chief Justice Hutton sitting without a jury.
17. The prosecution case linking the applicant to the hijacking of the car and the shooting incident was based on forensic evidence. The link was between a balaclava and the gloves found in the car and the applicant. According to the prosecution, the fibres found in the hair combings taken from the applicant and found on his clothing matched exactly the fibres of the two black balaclavas and the fibres of the pair of gloves found in the car.
18. The forensic expert witness called by the prosecution testified that:
“Considering the presence of fibres to match two separate fibre sources from the car on [the applicant] and his clothing would strongly support the proposition that there had been direct and intimate contact with the black masks and gloves from the car.”
19. At his trial the applicant gave evidence to the effect that at the relevant time he had been working with sheep at the Kellys' farm on the afternoon of 24 April and had then stayed at the farm for a meal until about 7 p.m. He further stated that on the previous day, 23 April, when he was at work, he had worn black gloves and a rolled up balaclava as protective clothing.
20. The applicant called several witnesses to support his alibi, including the Kelly brothers.
21. On 20 December 1995 the applicant was convicted of two counts of murder, one count of attempted murder, one count of possession of two rifles and a handgun together with a quantity of ammunition with intent, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981, one count of assaulting and falsely imprisoning Michael Murphy, and one count of hijacking a Vauxhall Cavalier motor car, contrary to section 2(1)(a) of the Criminal Jurisdiction Act 1975.
22. In his judgment the judge found the applicant guilty, having regard to circumstantial evidence of a forensic nature linking the applicant with the Vauxhall car allegedly used by the gunmen and the applicant's presence in the vicinity of the shooting (some fourteen miles from its location). The forensic evidence consisted of the following:
(a) twelve fibres were found in the head hair of the applicant matching exactly the fibres from one of the balaclava masks and fourteen fibres were found in the head hair of the applicant matching exactly the fibres from the pair of black gloves;
(b) one fibre matching exactly the fibres from one of the black balaclava masks was found on the jacket of the applicant and twelve fibres matching exactly the fibres from the pair of black gloves were found on the jacket of the applicant;
(c) four fibres matching the fibres from the pair of black gloves were found on the outside of the jeans of the applicant and large numbers of fibres matching exactly the fibres of the pair of black gloves were found in both side pockets of the jeans of the applicant;
(d) one fibre exactly matching the fibres of one of the black balaclava masks was found in each of the side pockets of the jeans of the applicant.
23. The judge accepted the evidence of the prosecution forensic expert witness that the presence of fibres to match the two separate fibre sources from the car, namely the black balaclava masks and the pair of black gloves on the head hair and on and in the clothing of the applicant strongly supported the proposition that there had been direct and intimate contact between him and one or both of those black balaclava masks and the pair of black gloves.
24. Moreover, the judge relied on the “very strong adverse inference” which he drew against the applicant under Articles 3 and 5 of the 1988 Order. The judge stated:
“Yet the [applicant] made no reply to the questions repeatedly put to him throughout the interviews and gave no information whatsoever about his movements on 24 April and no account of wearing a balaclava and gloves at his work on 23 April, but gave detailed evidence in respect of these matters for the first time at his trial. I therefore draw a very strong adverse inference against him under Article 3 of the 1988 Order. ... it would have been a simple and easy thing for him to have told these matters to the interviewing police officers.
Mr Harvey [counsel for the applicant] submitted that the court should not draw an adverse inference under Article 3 by reason of the fact that when the [applicant] was stopped at the vehicle check-point on the evening of 24 April he told Sergeant Ford about 7.45 p.m., when asked how he came to be in the company of the other two men, that he had been giving them a hand with sheep all afternoon since around 1 p.m., and that he later told Sergeant Ford about 8.20 p.m., that he had been at the Kellys' all afternoon working with sheep since about 1 p.m., that he had a fry at the Kellys', and that he had got washed in that house. Mr Harvey submitted that the purpose of Article 3 was to stop an accused at his trial putting forward an ambush defence. As the [applicant] had told the police who stopped him at the vehicle check-point that he had been at the Kellys' working with sheep all afternoon, the purpose of Article 3 had been achieved, and that it would therefore be wrong to draw an adverse inference against the [applicant] under the Article because he refused in interviews to repeat to the police his defence or to answer questions about it. I reject that submission. ... Notwithstanding that the [applicant] told Sergeant Ford in brief terms that he had been working at the Kellys' farm since 1 p.m., common sense clearly indicates that if the defence which he advanced in the witness box was true, he would have told the police of it after he was cautioned in Gough Barracks under Article 3 and was questioned at length about his movements on 24 April and was asked if he had an explanation for the fibres found on his hair and clothing. In addition I draw a very strong adverse inference against the [applicant] under Article 5 of the 1988 Order. The [applicant] failed to account for these fibres after each caution was read ... although he gave an explanation at the trial that he had been wearing gloves and a balaclava at his work on 23 April, which explanation was clearly designed and intended to show that the fibres found on his hair and on his clothing came from gloves and a balaclava which he was wearing ... on 23 April. This was an explanation which he could easily have given to the constable who served the Article 5 caution on him, and by reason of this failure to do so I draw a very strong adverse inference against him that the evidence which he gave at the trial about wearing a balaclava and gloves at work on 23 April was false. Mr Harvey submitted that I should not draw that inference because the cautions lacked clarity and detail ... and ... did not give the [applicant] sufficient information to enable him to understand that he was being requested to account for the presence of fibres from a pair of gloves and from a balaclava ... on his hair and clothing. ... I do not accept that submission. It follows from the very strong inferences which I have drawn against the [applicant] under Article 3 and Article 5 that I reject the evidence of the witnesses who sought to give the [applicant] an alibi by stating in the witness box that he was in the Kellys' farm at Halfgayne Road during the period when the gunmen were going to the Murphys' bungalow, imprisoning Mr Murphy and hijacking his car, murdering M.A.S. and J.A.W.Mc. ... For the same reason I reject the evidence of Sean McIldowney that the accused wore a balaclava and gloves at work on 23 April.”
25. The judge continued with reference to Article 5 of the 1988 Order:
“Having regard to the matters clearly put and explained to the [applicant] ... I think it is clear that the accused knew perfectly well that the Article 5 cautions referred to the fibres from the balaclava masks and pair of gloves found in the gunmen's cars, but he failed to give the explanation which he later put forward at trial and this failure gives rise to the very strong adverse inference which I draw against him.”
26. The judge did not draw any inference under Article 6 of the 1988 Order.
27. The judge also held:
“It follows from the very strong adverse inferences which I have drawn against the [applicant] under Article 3 and Article 5 that I reject the evidence of the witnesses who sought to give the [applicant] an alibi by stating in the witness box that he was in the Kellys' farm ... during the period when the gunmen were ... murdering ... and escaping from the place where the car was set on fire. The [applicant] had ample time to get to the Kellys' farm before 7 p.m. from the place where the car had been set on fire. ...
In addition, and apart from the very strong adverse inferences which I draw under Articles 3 and 5, having seen them in the witness box I regarded the [applicant] and Patrick Kelly as dishonest and unreliable witnesses whose evidence I did not believe.”
28. The applicant appealed on the grounds, inter alia, that the trial judge had erred in drawing an adverse inference under Article 3 when the accused was questioned about his movements on 24 April 1994 since he had already given an account of his movements to Sergeant Ford when he was stopped on that evening; that the inference drawn from his failure to give an explanation of the forensic findings concerning the fibres found on him by mentioning to the police that he had been wearing a balaclava and gloves on the day before the killing should not have been one of significant weight; that the police did not give him sufficient information to enable him to understand the nature of the forensic evidence for which he was requested to account; and, finally, that it was not open to the trial judge to reject the applicant's explanation that he had kept silent because it was simply his policy not to speak to the police.
29. In its judgment of 3 January 1997 the Court of Appeal (Lord Justice MacDermott) of Northern Ireland agreed with the trial judge in the following terms:
“... [T]he drawing of an inference under Article 3 is not automatic. ... Before an inference may be drawn against an accused, the tribunal of fact must be of the view that it is proper to do so. This will allow for consideration of the adequacy of a single statement of a relevant defence and whether any explanation for a failure to repeat it is acceptable. Moreover, the court which invokes Article 3 can weigh the strength of the inference to be drawn against the accused.”
Lord Justice MacDermott continued:
“As we have already held, the mere recital on a single occasion of the gist of a defence on which an accused subsequently relies on trial will not usually prevent the invocation of Article 3. Whether such a statement will prompt the court not to draw an inference against the accused will depend on an evaluation by the tribunal of fact of all the relevant circumstances including the accused's explanation for his failure to repeat the statement of his defence on interview. ... Where ... allegations are put to a suspect in interview which, if unchallenged, are clearly indicative of his guilt and where he fails, until trial, to put forward his answers to these or an explanation of them consistent with his innocence, this will justify the drawing of a strong inference against him. In this case the significance of the forensic evidence could scarcely be more obvious and important. It called for the production of the appellant's explanation at the earliest moment. The failure to produce that explanation on a point of such obvious and immediate importance justified the drawing of a strong adverse inference against the appellant. When that failure went unexplained (save by reference to a policy which was neither justified nor elaborated upon by the [applicant]) the drawing of a strong adverse inference against him was virtually inevitable. Mr Harvey [counsel for the applicant] submitted that the manner in which the forensic evidence was described by the [police] must have confused the appellant as to the nature of the forensic evidence which existed against him. Like the learned trial judge we do not accept this proposition. Mr Harvey submitted that it was not open to the learned trial judge to conclude that such a policy [by the applicant not to speak to the police] did not exist. We reject this argument. ... A person may have and apply such a policy but he must realise that the tribunal of fact may then draw an adverse inference from his silence. This [applicant] was seen daily by his solicitor after an initial 24-hour deferral and if he chose to remain silent it was his free choice. This does not avoid the possibility of Articles 3 or 5 being used to his disadvantage, however. To accept that a suspect may successfully rely on a 'policy' of silence to avoid the adverse effect of the Articles would 'drive a coach and four through the statute'.”
30. In conclusion, Lord Justice MacDermott stated:
“We are entirely satisfied that the learned trial judge approached his task in a careful and critical manner, he adverted to all the evidence and he was satisfied of the guilt of the [applicant] having not only heard the evidence but observed the witnesses. In our judgment these convictions were in no way unsafe or unsatisfactory.”
31. The Court of Appeal dismissed the applicant's appeal.
32. The applicant escaped from prison shortly before Christmas 1997. He remains unlawfully at large.
33. The relevant parts of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provide:
“Circumstances in which inferences may be drawn from the accused's failure to mention particular facts when questioned, charged, etc.
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies:
...
(c) the court ... in determining whether the accused is guilty of the offence charged,
may -
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”
34. The relevant parts of Article 5 of the Criminal Evidence (Northern Ireland) Order 1988 provide:
“(1) Where -
(a) a person is arrested by a constable, and there is -
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) the constable reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so,
then if, in any proceedings against the person for the offence so specified, evidence of those matters is given, paragraph (2) applies.
(2) Where this paragraph applies -
(a) the court, in determining whether to commit the accused for trial or whether there is a case to answer; and
(b) the court or jury, in determining whether the accused is guilty of the offence charged,
may -
(i) draw such inferences from the failure or refusal as appear proper;
(ii) on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material.
...
(4) Paragraphs 1 and 2 do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1)(c) what the effect of this Article would be if he failed or refused to comply with the request.”
35. The relevant parts of section 45 of the Northern Ireland (Emergency Provisions) Act 1991 provide:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) above as soon as practicable after he has become a person to whom that subsection applies.
...
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section.
(5) Any delay in complying with a request under subsection (1) above is only permitted if -
(a) it is authorised by an officer of at least the rank of superintendent; and
(b) it does not extend beyond the relevant time.
(6) In subsection (5) above “the relevant time” means
(a) where the request is the first request made by the detained person under subsection (1) above, the end of the period referred to in section 44(6) above; or
(b) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor, the end of the period of forty-eight hours beginning with the time when that consultation began.
...
(8) An officer may only authorise a delay in complying with a request under subsection (1) above where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it:
(a) will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person; or
(b) will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence; or
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts or terrorism; or
(e) by alerting any person, will make it more difficult -
(i) to prevent an act of terrorism; or
(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.”
36. There is no right at common law to have a solicitor present during a police interview. Such a right has been conferred by paragraph 6.8 of Code C, made pursuant to section 65 of the Police and Criminal Evidence Act 1989 (“PACE”), on those who are not arrested or detained under section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989. However, by section 66(12) of PACE it was expressly provided that the Code affording that right does not apply to those arrested and detained for terrorist offences. In particular, having regard to the legislative context, the House of Lords has recently declined to hold that such persons have any common-law right to have a solicitor present during interview (R. v. Chief Constable of the RUC, ex parte Begley [1997] 1 Weekly Law Reports 1475).
37. Following the judgment of the European Court of Human Rights in the case of John Murray v. the United Kingdom (judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I), the Home Office issued Circular 53/98 to inform chief officers of the judgment's implications and the consequent new arrangements for use by police officers and prosecutors of evidence obtained from a suspect during the course of an interview in which legal advice was sought but delayed by the police. Paragraph 6 of the circular states:
“I attach a copy of the guidance which has been issued by the Attorney General to advise Prosecutors reviewing a case, or presenting a case in court, in which the suspect's access to legal advice was delayed in accordance with Annex B of Code C, that they will not be able to attach any weight to the accused's failure to reply to questions in an interview conducted at the Police Station when access to legal advice has been delayed but that inferences may be drawn under sections 34, 36 and 37 of the 1994 [Criminal Justice and Public Order] Act if the suspect remained silent when re-interviewed after legal advice was obtained.”
The circular continues:
“4. ... The Prosecution should not seek to rely on inferences from silence before access to legal advice has been granted. In the event the court, or of its own volition, indicates an intention to draw any such inferences, its attention should be drawn to the judgment of the European Court of Human Rights in John Murray v. the United Kingdom.
5. The question of drawing inferences from silence is most likely to arise under section 34 of the 1994 Act and Article 3 of the 1988 Order (which relate to failure to mention when questioned or charged facts subsequently relied upon by an accused in his own defence). The position to be adopted by Prosecutors is set out above. ... If access to a solicitor has been denied at the Police Station, the court should not be invited to draw the inferences which might otherwise be drawn in such circumstances (irrespective of the line of defence put forward by the accused) since it is a situation where, but for the denial of access to a solicitor, the accused would ordinarily have access to legal advice.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-98387
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF Z. v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The applicant was born in 1957 and lives in Bytom.
7. On 27 April 1996 the applicant married M.N. In November 1996 M.N. gave birth to their daughter, D.Z.
8. In 2000, following a conflict between the spouses, the applicant moved out of their place of residence.
9. On 15 May 2000 the applicant requested the Bytom District Court (Sąd Rejonowy) to regulate contact with his child.
10. On 6 July 2000 the Bytom District Court allowed the application and regulated contact with the applicant's daughter. In particular, the court granted him the right to visit his daughter on given days of each week and to spend summer holidays with her in August without the presence of the child's mother.
11. On 4 September 2000 the applicant requested the Bytom District Court to seize his daughter's passport. He reasoned his request by a reasonable fear that M.N., who had many contacts in Scandinavian countries, could try to take their daughter to Norway. It is unclear from the case file whether the request was granted.
12. On 29 September 2000, following an appeal by M.N., the Katowice Regional Court (Sąd Okręgowy) upheld the decision of the District Court of 6 July 2000.
13. The court's order was not enforced and therefore, on 8 January 2001, the applicant requested the court to impose a fine on his former wife.
14. In October 2000 the applicant's former wife and their daughter moved from Bytom to Zakopane, so the case file had to be transmitted to the court with jurisdiction there. The relevant decision was taken on 3 July 2001. However, the transfer did not take place until November 2001.
15. On an unspecified date M.N. filed for divorce. The issue of the applicant's visiting rights was therefore examined by the divorce court.
16. On 30 March 2001 the Katowice Regional Court gave a decision regulating the applicant's contact with his daughter. In particular, the court granted him the right to visit his daughter every Friday between 1 p.m. and 5 p.m. at a location other than the flat in which she lived with her mother. The applicant was also allowed to collect his daughter from kindergarten. The contact was to take place in the presence of a court officer (kurator sądowy).
17. The decision of 30 March 2001 was not complied with by the applicant's former wife, who prevented the applicant from exercising his visiting rights.
18. Between 20 April 2001 and 8 March 2002 the applicant saw his daughter on 27 occasions. A further sixteen meetings were cancelled for various reasons: eight for the daughter's failure to appear, one at M.N.'s request, three for the applicant's failure to appear and four for the guardian's failure to appear.
19. On 5 March 2002, relying on Article 1050 of the Code of Civil Procedure, the applicant requested the court to impose a fine on M.N.
20. The applicant's request was not examined by the court.
21. In the summer holiday period of 2002 the applicant's former wife moved from Zakopane to Bytom, so the Zakopane District Court transmitted the case file concerning the application for a fine to be imposed on M.N. to Bytom.
22. On 20 May 2003 the Bytom District Court gave a decision and gave M.N. one month to comply with the court order. At the same time the court conditionally imposed on her a fine of 1,000 Polish zlotys (PLN) in the event of default.
23. M.N. continued to prevent the applicant from exercising his visiting rights.
24. On 5 July 2003 the applicant again requested the court to impose a fine on his former wife.
25. In the meantime, on 23 September 2003, the Katowice Regional Court gave a new decision regulating the applicant's visiting rights. The decision was similar to the previous one, but the court additionally obliged M.N. to prepare the child to be picked up by his father on given dates (przygotowania dziecka i wydania w terminie wyznaczonym).
26. On 28 November 2003 the Katowice Regional Court granted a divorce. It also indicated the manner in which the parental authority should be exercised. The court made a residence order under which the child was to live with her mother, but the applicant was granted visiting rights, in particular the right to visit his child on given days of the week, without the presence of the mother and the right to spend one month of summer holidays, one week of winter holidays and the second day of the Christmas holidays with his daughter. The court also ordered that all decisions crucial for the child's upbringing were to be taken by both parents.
27. The judgment was not challenged by M.N.
28. M.N. still did not comply with the court order. She prevented the applicant from collecting his daughter from kindergarten (by instructing the staff not to let the applicant collect the child) and organised the child's holidays in such a way that she was abroad with her mother or grandparents for the whole two months of the summer holidays.
29. On 13 January 2004 the Bytom District Court imposed on M.N. a fine of PLN 600 for her failure to comply with the court's order as regards the applicant's visiting rights. The court also gave M.N. one month to make it possible for the applicant to exercise his visiting rights and held that, should she fail to comply with this order, another fine of PLN 800 would be imposed on her.
30. On an unspecified date M.N. appealed against this decision and, on 19 March 2004 the decision was upheld by the Katowice Regional Court.
31. However, these decisions were once more not enforced.
32. On 15 March 2004 the applicant again requested the court to impose a fine on his former wife.
33. On 26 August 2004 the Bytom District Court again ordered M.N. to pay the fine of PLN 800 and gave her one month to allow the applicant to exercise his visiting rights. The court also held that, should she fail to comply with its order, a further fine of PLN 1,000 would be imposed on her.
34. On 5 November 2004, following an appeal by M.N., the Katowice Regional Court upheld that decision.
35. The court's orders still remained unenforced.
36. On 16 November 2004 the applicant again requested the court to impose a fine on M.N.
37. On 30 March 2006 the court fined M.N. PLN 1,000.
38. On 26 May 2006 M.N. appealed against that decision. It is unclear from the case file whether the decision of 30 March 2006 was upheld by the second-instance court.
39. On 26 September 2006 the Bytom District Court again regulated the applicant's visiting rights and ordered that the contacts would take place in the Bytom Family Consultation Centre (Rodzinny Ośrodek DiagnostycznoKonsultacyjny) in the presence of a psychologist, on every first and third Monday of each month, between 3.30 p.m. and 5 p.m.
40. On an unspecified date in March 2008 the applicant requested the court to change the rules governing his contact with his daughter.
41. On 30 April 2008 the Bytom District Court gave a decision and regulated the applicant's visiting rights, ordering that contact should take place on every second and fourth Saturday of each month between 2 p.m and 5 p.m., outside the applicant's daughter's place of residence. The court also ordered M.N. not to disrupt this contact.
42. Both parties appealed against that decision.
43. On 19 September 2008 the Katowice Regional Court extended the applicant's contact with his daughter by ordering that it should take place between midday and 6 p.m. on the days specified in the Bytom District Court's decision. The court dismissed M.N.'s appeal.
44. On 6 May 2009 the Bytom District Court gave a decision and ordered M.N. to fulfil an obligation imposed on her in the Bytom District Court's decision of 30 April 2008 and the Katowice Regional Court's decision of 19 September 2009 under pain of a fine in the amount of PLN 500.
45. The applicant made several attempts to contact his daughter but, according to his submissions, the doors of the apartment where she lives were locked.
46. On 20 July 2009 the applicant requested the Bytom District Court for assistance in establishing the current address and place of residence of his daughter.
47. M.N. submitted to the court a medical certificate indicating that she would not be able to appear before the court in person until 2 January 2010.
48. According to the applicant, he is deprived of any contact with his daughter.
49. On an unspecified date M.N. tried to have criminal proceedings instituted against the applicant. She accused him of having sexually abused their daughter. According to an expert's opinion the testimony of D.Z had been influenced by a third party. The proceedings against the applicant were discontinued.
50. The relevant domestic law concerning the enforcement of a parent's visiting rights is set out in the Court's judgment in the case of P.P. v. Poland, no. 8677/03, § 69-74, 8 January 2008.
51. According to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parents' contact rights refuses to comply with it, contact decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to enforcement of court decisions on parental rights or contact rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8).
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...).
2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.”
If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation.
52. Article 1052 of the Code of Civil Procedure provides as follows:
“In one decision the court may impose a fine not exceeding 1,000 Polish zlotys (PLN) unless the fine had been already imposed three times and this had proved ineffective. The total amount of fines in the same case may not exceed PLN 100,000 (...).”
53. Article 1053 of the Code of Civil Procedure in its relevant part provides as follows:
“The court, while imposing a fine, shall at the same time impose an arrest in case the fine is not paid. One day of arrest shall be equivalent to between five and one hundred and fifty zlotys of fine. The total duration of arrest in the same case shall not exceed six months.”
54. On 28 August 2008 the Supreme Court, in reply to a legal question asked by the Wrocław Regional Court, adopted a resolution (III CZP 75/08) which read as follows:
“Decisions regulating contact between parents and a child, ordering the parent who has the custody of the child to put the child in the disposal of the other parent and ordering the other parent to return the child (to accompany the child back), are enforced in the proceedings regulated in Article 5981 and subsequent of the Code of Civil Procedure”
55. Article 5986 of the 1964 Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides that if a person who is ordered to return a child does not comply with the court's order, the court will instruct the guardian to forcibly remove the persons concerned (przymusowe odebranie osoby).
56. Under Article 59810,
“Upon a request of a court-appointed guardian, the police are obliged to help him or her to carry out the forcible removal of [a minor].”
57. Article 59811 § 1 provides as follows:
“If forcible removal of [a minor] is hindered because that person is in hiding or because other action is taken with the aim of stopping the enforcement of the order, the court-appointed guardian shall inform a prosecutor.”
58. Pursuant to 59812,
“§ 1 The court-appointed guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of the child is not damaged and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function.
§ 2 If the well-being of [a minor] would be placed at risk as a result of the removal, the guardian shall stop the enforcement of the order until the risk is over, unless by stopping the enforcement, the person would be placed at greater risk.”
VIOLATED_ARTICLES: 8


ITEMID: 001-23181
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PEREIRA v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Mario Pereira, is a United Kingdom national, who was born in 1973 and is currently serving a sentence of life imprisonment in HM Prison Wakefield. He is represented before the Court by Saunders and Co, solicitors practising in London.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 February 1997, Michael Menson died as a result of severe burns sustained during an incident in a street on the night of 27-28 January 1997, when he was sprayed with a form of accelerant and the back of his clothing set alight.
As a result of their investigation, the police arrested and charged in the United Kingdom three men, the applicant, Charalambous Constantinou and Husseyin Abdullah. A fourth man implicated in the incident, Ozzie Cevat, had gone to Cyprus. He was arrested and tried in Cyprus and convicted of manslaughter.
The trial in the United Kingdom took place in November-December 1999. The prosecution case was that the applicant and Cevat had set Menson on fire while Constantinou had assisted by acting, inter alia, as lookout and that Abdullah had committed subsequent acts intended to pervert the course of justice (namely, by covering up the evidence of the incident). In the case of the applicant, the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them; on covert tape recordings of conversations between him and his co-accused; and on the lies which he had told the police. As regarded Constantinou, the prosecution relied on his own account that he had watched the applicant and Cevat carry out the attack, making no attempt to leave and doing nothing to prevent what happened. Afterwards he had taken Menson’s personal stereo. In his case too, the prosecution relied on the covert recordings and the lies he told.
Before the trial, the applicant applied for severance of the trial so that he would not be tried with his two co-defendants. He considered that a joint trial would prejudice his defence such that a fair trial would not be possible. This was because both his co-defendants had made statements implicating him in the attack. In particular, Constantinou in his statement to the police had stated that the applicant and Cervat were not only present but had set fire to the victim. According to the rules of evidence, this statement was evidence against Constantinou but not the applicant. However although the judge would be bound to direct the jury to that effect, the jury would still hear Constantinou’s version of events. It was also unlikely that Constantinou, who had a history of mental disorder, would give evidence and be available to be cross-examined. At the same time, the applicant applied under section 78 of the Police and Criminal Evidence Act 1984 for the evidence from the covert tapes to be excluded as inadmissible and also relied on the prejudice to his defence from the taped conversations from Constantinou implicating him.
The judge rejected the applicant’s application for severance. He took the firm view that this was a case which called strongly for a single trial. He recognised that there was a danger of prejudice in that ruling but pointed out that there was a joint charge of murder and that it would be difficult to have a fair trial of all the accusations if done separately.
“In this case if tried separately, it is possible that Pereira could be acquitted of murder, and Constantinou, whose case is that Pereira had carried out the killing, could be convicted. It is also possible that there could be inconsistent verdicts on the individual counts of doing acts tending to and intended to pervert the course of justice.
In the circumstances, although there is some prejudice to all three defendants if each is tried with the others, in my judgment, there are no exceptional circumstances which make it necessary for me to order severance. Balancing all the factors for and against severance, I conclude that the interests of justice are best served by a joint trial of the defendants...”
The judge also refused to exclude the covert tapes as evidence.
During the trial, neither of the applicant’s co-defendants chose to give evidence. The applicant did go into the witness box.
On 21 December 1999, the applicant was convicted of murder and sentenced next day to life imprisonment. Constantinou was convicted of manslaughter and a count of perverting the course of justice and was sentenced to a total of 12 years’ imprisonment for manslaughter.
The applicant applied for permission to appeal, on the grounds inter alia that the judge had wrongly refused to order a separate trial. Permission to appeal was refused by a single judge of the Court of Appeal. He renewed his application. At a hearing held on 9 April 2001, the Court of Appeal considered as regarded the judge’s decision to try all the defendants together:
“That was a judgment
[Counsel for the applicant] said to us that the exceptional circumstances were the absence of significant evidence against his client, in terms of there being no eye witnesses, no forensic evidence and the dubious nature... of the persons to whom the confessions had actually been made.
It was not, however, the case that there was no other evidence at all against his client, nor, in our judgment, is it right to say that the jury would necessarily have concentrated on inadmissible evidence in order to understand the case. This was very much a matter for the judge’s judgment. This Court will not interfere with his ruling in this case.
The judge was, of course, in making that ruling, acutely conscious of the need to direct the jury in the clearest possible terms as to what evidence was admissible and what was not in the case of each man. He said:
‘...what Mr Constantinou may have said to Mr Abdullah and Mr Abdullah to Mr Constantinou in the absence of Mr Pereira is not evidence against Mr Pereira, and if there are other occasions vice versa as far as Mr Pereira is concerned.
The same applies to what Mr Constantinou may have said to Pereira about Mr Abdullah in Mr Abdullah’s absence, or what Mr Abdullah may have said about Mr Pereira or Mr Constantinou in the absence of one or other of them.
It is desperately important that you bear that in mind at all times and of course it is important because you are going to be considering, as I have already told you, the cases entirely separately in relation to each.’
The judge was entitled to assume, and this Court will assume, that the jury understood and acted on a direction that was singled out by the judge as being ‘desperately important’ as part of their work. That safeguard is and was the proper safeguard for the various defendants. It is the appropriate safeguard in a case such as this.”
The Court of Appeal went on to find that the judge had not erred in admitting the evidence of the covert tapes. They rejected the applicant’s arguments that Constantinou’s statement to the police should not have been admitted in evidence as it was entirely self-serving and that the jury’s verdicts were inconsistent.


ITEMID: 001-89579
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RUSSU v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1957 and lives in Chişinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant worked as a journalist for the national public audio-visual institution, Teleradio-Moldova company (T.). According to the applicant, on 27 July 2004 a spontaneous strike began amongst T.’s staff in response to alleged censorship and disrespect for democratic principles enforced within T. by the Communist Party. The applicant was among a group of staff who occupied a room and refused to vacate it until their demands were met. According to the Government, this was an unauthorised demonstration.
8. On 23 September 2004 the applicant, who was present in court, was found guilty of breaching Article 174/1 § 4 of the Code of Administrative Offences by actively participating in an unauthorised demonstration. She was fined 180 Moldovan lei (MDL) (12 euros (EUR) at the time).
9. The applicant appealed, claiming that there was no evidence of her active participation in the meeting and that the meeting had been an unplanned strike which should be examined under the relevant labour legislation.
10. On 7 October 2004 the applicant was dismissed from her position. She remains unemployed, having formally registered as such on 8 January 2005.
11. On 18 November 2004 the Chişinău Court of Appeal examined her case in her absence and rejected her appeal in cassation. The court noted that the applicant had been summoned. According to the applicant, she had not been summoned and found out about the decision of the Court of Appeal only on 6 January 2005 when she inquired about her case at the court’s registry.
12. The applicant paid her fine on 11 January 2005.
13. The relevant domestic law has been set out in Ziliberberg v Moldova no. 61821/00, §§ 22-25, 1 February 2005.
14. In the judgment of 25 April 2007 in the civil case 2ra-460/07 the Supreme Court of Justice dismissed the claim that the appellant had lodged his appeal outside the time-limit established by law (fifteen days from the date when he had been informed of the appealed judgment). The court found that although there was evidence that the court had sent a copy of the judgment to the appellant, there was no evidence in the case file to confirm the date of its delivery. Accordingly, the appeal was considered as having been lodged within the time-limit, despite the fact that it was lodged twenty-six days after the court had sent the copy of the judgment to the appellant.
VIOLATED_ARTICLES: 6