ITEMID: 001-5117
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: FARKAS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Benedetto Conforti
TEXT: The applicant is a Hungarian national born in 1965 and living in Kunszentmiklós, Hungary. He is a businessman. He is represented before the Court by Mr. J. Somogyi, a lawyer practising in Budapest.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
The application concerns the circumstances of the applicant’s arrest by four members of the Kunszentmiklós Police on 29 April 1995 and his alleged ill-treatment subsequently at the Kunszentmiklós police station. As to the actual course of these events, the Government and the applicant submitted conflicting versions.
a. The applicant’s account of the relevant events
On 29 April 1995, at about 6 p.m., the applicant was working in the yard of his house, when he saw Mr. R. approach, running on the street. Two police officers wearing uniforms and holding guns were chasing Mr. R. The applicant asked one of the policemen why they were chasing Mr. R. In response the policemen ordered the applicant to drop the wooden bar he was holding in his hand. He complied with the order. Thereupon he was ordered to lie down on the ground. He, being afraid, attempted to run away, during the course of which the other policeman present hit him in the face. He nevertheless managed to break free and escape to the neighbouring gardens. Realising that two further police officers had meanwhile arrived on the premises, he eventually went out on the street again and lay down on the ground. Subsequently he was handcuffed and brought to the Kunszentmiklós police station. He alleges that during the drive to the police station Police Officer F. hit him once in the stomach.
At the police station his hands were handcuffed behind his back and, subsequently, Police Officer F. and the police officer who had previously taken the action against him in front of his house systematically beat him up. During the beating he fell on the floor, where he was kicked several times and his head was banged against the floor, which resulted in a bleeding bruise on his forehead. A person wearing plain clothes stepped on his dislocated foot. Thereupon he was instructed to wash himself, go outside and tell his relatives waiting there that he had not been hurt and that they should leave. He did not comply with this instruction.
b. The Government’s account of the events
On 29 April 1995 Police Officers R. and F. were on duty in Kunszentmiklós. They halted a car for an identity check of the driver and his passenger. This latter person, however, did not comply with the police officers’ instruction but jumped out of the car and started to run away. While chasing him, the police officers reached the street where the applicant lives. Here the applicant appeared, holding a wooden bar in his hands.
According to the police officers and a civil guard present, the applicant yelled at them, blocked their way and hit with the wooden bar in the direction of Police Officer R.’s head. Thereupon Police Officer F. took out his service gun and ordered the applicant to drop the wooden bar. He dropped the wooden bar and ran away. Police Officer R. ran after him, caught him and attempted to stop him grasping him by his left shoulder. The applicant turned around and, with his right fist, he hit Police Officer R. on the left cheek. Thereupon the police officer tried to push the applicant down on the ground, but the latter hit him again on the left cheek twice, managed to break free and ran away. In this moment the applicant’s relatives and neighbours showed up in the street; the preceding events had consequently not been eye-witnessed by anyone other than the police officers and the civil guard. Police Officer R. went on trying to subdue and hand-cuff the applicant in order to prevent further violence but he could not overcome his resistance.
Eventually, the applicant broke free and ran into the spectators’ crowd where he disappeared. Police Officer R. followed the applicant into the crowd and saw him fall on the ground accidentally. By the time he got near the applicant lying on the ground in order to handcuff him, several women - some relatives and acquaintances of the applicant - leant over the applicant, covering him with their bodies and preventing his handcuffing. While the police officers were trying to pull these women away, the applicant broke free again and ran away. Jumping over several fences, he soon reappeared in another direction in the street.
In this moment two further policemen arrived on the premises upon the acting police officers’ call for back-up. Presumably owing to exhaustion, the applicant meanwhile lay down on the stony earth road further down the street, where the above-mentioned women leant over him again, covering him with their bodies. The proceeding police officers finally managed to handcuff the applicant, whom they brought to the Kunszentmiklós police station.
According to the testimonies given in the course of the ensuing investigations by the police officers involved and the civil guard present, the applicant had injuries on his face when handcuffed; in turn, he was not ill-treated at the police station.
c. Subsequent events on 29 April 1995
Later that day Dr. F. was called to the Kunszentmiklós police station, who, at 10.35 p.m., examined the applicant and prepared a medical report on his injuries. Subsequently he left to fetch his instruments in order to suture the applicant’s wound on the forehead. The applicant alleges that thereupon a police officer handcuffed him again and went on hitting and kicking him.
After Dr. F. had returned and sutured the applicant’s wound over the eye, the latter was brought to the Bács-Kiskun County Police Department’s Prison in Kecskemét.
d. Medical reports and opinions evaluating the applicant’s injuries
In his report of 29 April 1995, Dr. F. stated that the applicant had the following injuries: abrasions, bruises and suffusions of the face, the forehead, the neck, the shoulders, the right upper arm, the chest and the back, a swollen reddish discoloration and suffusion in the upper stomach region, as well as a ruptured wound over the right eye. In Dr. F.’s opinion, these injuries were to heal within seven days.
On 2 May 1995 Dr. T. examined the applicant in the Kecskemét prison. In his report Dr. T. described altogether nineteen counts of contusions and abrasions scattered on the applicant’s head, arms, chest, back, trunk and legs.
On 28 May 1995 the Bács-Kiskun County Police Department appointed a medical expert to give his opinion on the previous medical reports concerning the applicant’s injuries. The expert found that the applicant’s injuries, as described by Dr. F. on 29 April and by Dr. T. on 2 May, could be due to the struggle between the applicant and the police officers and the applicant’s falling down on harsh ground in the context of his arrest. In turn, the expert found no reference in the reports to any injury, which could be attributed to any brutality other than the circumstances of the applicant’s arrest.
On 10 August 1995 Professor D., a forensic pathologist appointed by the Kecskemét Branch Office of the Szeged Prosecution’s Department of Investigation (“the Branch Office”), issued an opinion as to the nature of the applicant’s injuries. He found that the contusions and abrasions on the applicant’s body, as described in the medical reports of 29 April and 2 May, could be due to punches or to falling down on harsh ground. The swollen lesion in the gastric area had been likely to derive from a punch on the applicant’s stomach. The injuries altogether could be the consequences of the applicant’s forcible immobilisation and handcuffing. From a forensic medical aspect it could not be proven if the injuries had been suffered in the context of the applicant’s arrest or of any potential subsequent ill-treatment.
On 20 September 1995 the Forensic Pathology Department of the Semmelweis Medical University issued a forensic medical opinion in the case. According to this opinion, the applicant’s injuries must have been due to at least eighteen counts of forcible impact and it could not be excluded that these impacts had been punches. However, in the Forensic Pathology Department’s view, the medical report prepared by Dr. F. on 29 April 1995 was not precise enough to underlie a forensic opinion as to the cause of the applicant’s injuries.
e. Proceedings in pursuit of the applicant’s allegations of ill-treatment
On 9 and 11 May 1995, respectively, the applicant laid charges of ill-treatment and of light bodily assault against the police officers involved. The ensuing proceedings took place before the Branch Office.
On 6 September 1995 the Branch Office discontinued the investigation upon the charges laid by the applicant. The Branch Office, relying on forensic medical expertise and witness evidence - given by the police officers and the civil guard present at the incident -, found that the applicant’s injuries could be due to the fight between the police officers and the applicant upon the occasion of the latter’s arrest, when hindering the lawfully proceeding police officers in arresting Mr. R. The Branch Office held that it could not be proven beyond doubt that the applicant’s injuries had been caused by ill-treatment rather than in the course of his lawful arrest.
On 27 September 1995 the applicant lodged a complaint against the decision of 6 September 1995. He criticised the fact that the Branch Office had held no hearing in the case. Moreover, he submitted the forensic medical opinion prepared by the Forensic Pathology Department of the Semmelweis Medical University on 20 September 1995.
On 13 October 1995 the Kunszentmiklós District Public Prosecutor’s Office dismissed the applicant’s complaint. The Prosecutor’s Office pointed out that it had not been possible to prove beyond doubt that his injuries had been caused as alleged and that the investigation had been, therefore, lawfully discontinued. To the extent that the decision of the Branch Office had concerned the applicant’s charges of light bodily assault, the Prosecutor’s Office quashed the decision of 6 September 1995 and transferred the case to the Kunszentmiklós District Court in order that it should proceed with the applicant’s charges in private prosecution proceedings.
On 9 November 1995 the applicant lodged a revisionary complaint with the Attorney General’s Office. In January 1996 the Attorney General’s Office dismissed this complaint.
On 29 February 1996 the Kunszentmiklós District Court, in preparatory proceedings, discontinued the private prosecution proceedings against Police Officers F., R. and S. The District Court found unsubstantiated the applicant’s charge of light bodily assault brought against the police officers.
On 16 April 1996 the Bács-Kiskun County Regional Court dismissed the applicant’s appeal. The Regional Court, while upholding the discontinuation of the proceedings, quashed the reasoning of the first-instance decision on the ground that it had constituted a pre-judgment of the case in breach of Article 10 (2) of the Code of Criminal Procedure.
The Regional Court held that the original charges laid by the applicant, namely those of ill-treatment and of light bodily assault, concerned one and the same event. His charge of ill-treatment was to be pursued in public prosecution proceedings but the relevant investigation had been discontinued and no indictment had been brought against the police officers on this account. In the instant private prosecution proceedings, however, the unlawful origins of the injuries inflicted in the context of the police action against him could not be established. A decision on this question having been a pre-requisite of examining the merits of the charge of light bodily assault, the proceedings were without an object.
f. Criminal proceedings against the applicant
Shortly after the events of 29 April 1995 the Head of the Kunszentmiklós Police instituted criminal proceedings against the applicant, charging him with having violently hindered the arrest of Mr. R. Subsequently the Branch Office prosecuted the applicant on account of the offence of violence against persons acting in official capacity.
On 30 April 1995 an investigator of the Branch Office heard the applicant as defendant concerning the circumstances of his arrest the day before. On this occasion the applicant did not allege that, subsequent to his arrest, he had been ill-treated at the police station.
On 3 May 1995 the Branch Office heard Police Officer R. and Mr. S., the civil guard involved in the events of 29 April 1995. Police Officer R. who stated that the applicant’s injuries had been due solely to the struggle in the context of his arrest. Mr. S. stated that, when handcuffed, the applicant had already had some abrasions on the face and that between the applicant’s arrival at the police station and his own departure therefrom at about 8 p.m. he had witnessed no ill-treatment of the applicant.
On 11 May 1995 the applicant was heard again in the presence of his lawyer. On this occasion the applicant stated that during the drive from the premises of his arrest to the police station, Police Officer F. had hit him once in the stomach, and that on his arrival at the police station, the police officer had poured some water on him. When in the building, Police Officer R. had sprayed some tear-gas in his eyes and then together with Police Officer F. he had started to hit and kick him. Subsequently he had been forced to wash himself. In a few minutes Dr. F. had arrived who had not examined him, but had had a look at his face and had stated that the wound over his eye needed to be sutured. After the doctor’s departure, Police Officer S. had kept on kicking him.
Also on 11 May 1995 the Branch Office heard Dr. F. who stated that when he had examined the applicant on 29 April 1995 between approximately 8 p.m. and 10 p.m., the latter had made no reference to any ill-treatment suffered at the police station. Dr. F. also stated that when having examined the applicant, he had observed no trace of wetness on the applicant’s clothes, neither had he seen any sign of a conjunctivitis due to contamination by tear-gas.
Moreover, on 11 and 26 May and 15 June 1995 four relatives of Mr. R. were heard as eye-witnesses. These persons stated that, when arrested in front of his house on 29 April, the applicant had not had any injuries.
On 11 August 1995 the Branch Office heard Police Officer O. who had arrived on the premises of the applicant’s arrest upon the call for back-up. He reinforced the above testimonies of Police Officer R. and Mr. S. and stated that, when handcuffed, the applicant had already had some bleeding injuries on the face.
On 26, 27 and 28 August, 30 September, 7 and 28 November 1997 the Kecskemét District Court held hearings in the case. When heard as a witness on 27 August 1997, Dr. F. stated that in his view the applicant’s injuries had been inflicted before he had first seen him on 29 April 1995, rather than during the interval between this inspection and the examination at about 10 p.m. Moreover, when heard as a witness on 28 August 1997, the author of the forensic medical opinion of 28 May 1995 sustained his earlier opinion in the sense that from a medical aspect it could neither be verified nor excluded that the applicant’s injuries had been due to punches.
On 28 November 1997 the Kecskemét District Court convicted the applicant of the offences of violence against persons acting in official capacity and of light bodily assault. It sentenced the applicant to one year’s imprisonment, the execution of which was suspended for three years. As to the applicant’s allegations of ill-treatment, the District Court noted that thirteen counts of his fifteen injuries were due to the struggle in the context of his arrest, whereas the cause for the remaining two injuries, namely a wound on his right eyelid and an abrasion on the left side of his forehead, remained unclear. Since, however, the medical reports had identified no injuries typical of physical abuse and no other evidence had emerged in support of the applicant’s allegations, the District Court found them unsubstantiated.
On 29 June 1998 the Bács-Kiskun County Regional Court upheld the first-instance judgment, while reducing the probationary period to one year.
B. Relevant domestic law and practice
According to Article 349 of the Civil Code, official liability [of the State administration] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages.
In its decision no. Pf.I.20.128/1992, the Supreme Court held that inappropriate police measures may give rise to official liability under Article 349.


ITEMID: 001-115259
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: OOMS v. FRANCE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Dirk Ooms, is a Belgian national who was born in 1961 and lives in Geel. He was represented before the Court by Mr Claude-André Chas, a lawyer practising in Nice. The French Government (“the Government”) were represented by their Agent, Mrs Edwige Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until November 2001 the applicant was the managing director of Diet, a company incorporated under French law. The company ran a mail-order business selling food supplements designed to aid weight loss. Among these were a liquid product called Forskoline 500 and effervescent tablets called Sveltys-Lyghtyss. The applicant indicated that these had been purchased from “a laboratory with the normal accreditation for such products”, based in Monaco.
The applicant added that the products in question had previously been marketed in Belgium and that “for this reason, the Belgian Federal Ministry of Social Affairs, Public Health and the Environment had, in accordance with the procedure in place in the country, authorised [their] release onto the market after verification of [their] conformity as a nutrient[s] within the meaning of Community legislation and in particular Directive No. 95/2/EC of 20 February 1995”. In that connection he provided, in particular, a document dated 28 September 2001, issued by the General Inspectorate of Foodstuffs, acknowledging receipt of a “notification file” and assigning a “plant number” to Sveltys-Lyghtyss.
Advertising carried out for the marketing of these products in France attracted the attention of the Department for Competition, Consumer Affairs and Fraud Prevention, which consequently conducted a number of investigations (in 2001 and 2002). Noting that the Sveltys-Lyghtyss tablets contained sodium benzoate, they contacted the person who had taken over from the applicant as managing director of Diet – who passed them the above-mentioned document dated 28 September 2001 – and then contacted the General Inspectorate of Foodstuffs in Brussels. The latter responded in the following terms in a letter dated 8 July 2002:
“... Further to your letter dated 11 June 2002 relating to non-compliance of the food supplement L[y]ghtyss with Directive No. 95/2 on food additives other than colours and sweeteners (unauthorised presence of sodium benzoate in a solid food supplement) ..., we have taken the necessary measures to compel the company DMS that markets this product in Belgium to comply with the directive within a period of one month. If the company fails to do so within the period we have allowed, we shall withdraw its notification number .... We thank you for this information ...”
The applicant and the person who had succeeded him as managing director of the company Diet and the company itself were prosecuted in the criminal courts. They were charged with, inter alia, false advertising, firstly regarding the composition, essential qualities, content of active ingredients, mode of manufacture, properties and expected effects of food supplements with alleged slimming qualities, and secondly by featuring fictitious studies by researchers on the identity, qualifications or skills of the retailers of these products. They were also prosecuted for having (during 2001 and until 2 November 2002) displayed, marketed or sold foodstuffs to be used for human consumption which they knew to be adulterated, tainted or toxic, by marketing food supplements containing sodium benzoate (Sveltyss-Lyghtyss tablets), namely, an unauthorised product in non-liquid food supplements.
By a decision of 5 March 2004, the Lille Criminal Court found the defendants guilty on those counts. It sentenced the applicant to six months’ imprisonment and a fine of 30,000 euros (EUR); the other defendants were sentenced to fines of EUR 10,000 and EUR 50,000 respectively.
The Douai Court of Appeal upheld the Criminal Court’s ruling on these points. Its judgment, delivered on 10 March 2005, highlights the following points in particular:
“... the Order of 2 October 1997 [which transposes into French law several EU directives on food additives, including Directive No. 95/2/EC of 20 February 1995], provides that ‘maximum levels indicated in Annexes III, IV and V refer to foodstuffs as marketed, unless otherwise stated; sodium benzoate (preservative E 211) appears in Annex III of this Order, which is permitted in food supplements up to a level of 2,000 mg per litre, but only in liquid food supplements.
The Sveltyss-Lightyss tablets were sold in solid form, so it is immaterial whether they were effervescent or intended to be ingested in liquid form.
Once the Belgian Government had acknowledged that the presence of sodium benzoate in solid tablets was such as to cause it to revise its previous position, the defendants could no longer rely on an authorisation they had obtained from the Belgian authorities; in any event, a decision taken by the authorities contrary to Community law does not create rights and cannot result in an acquittal of the defendants on these charges ...’
By a judgment of 21 March 2006, the Court of Cassation dismissed an appeal lodged by the convicted parties, rejecting the ground of appeal based, inter alia, on Article 7 of the Convention as follows:
“It is apparent from the judgment appealed against and the documents in the proceedings that the company Diet and its two successive managing directors ... were prosecuted in the criminal court on a charge of selling and releasing for sale adulterated food products on the grounds that in 2001 and 2002 theysold food supplements in the form of effervescent tablets, called Sveltyss and Lightyss, containing an illegal additive: sodium benzoate;
In finding the defendants guilty of the offence, the Court of Appeal held that the tablets were released for sale in solid form and that, consequently, the use of sodium benzoate was not permitted, since Directive No. 95/2/EC of 25 February 1995, transposed into national law by the ministerial order of 2 October 1997, restricts the use of this preservative to liquid food supplements;
On these grounds alone, and since at the material time sodium benzoate could not be incorporated, either in France or Belgium, into solid food supplements, the Court of Appeal justified its decision with regard to the legal and Convention provisions relied on;
...”
Article L. 213-3 of the Consumer Code is worded as follows:
“Anyone who
1. adulterates foodstuffs for human or animal consumption, medicines, drinks, or agricultural or natural products intended for sale;
2. displays, markets or sells foodstuffs for human or animal consumption, drinks, or agricultural or natural products which they know to be adulterated, tainted or toxic
shall be liable to the penalties provided for in Article L. 213-1
...”
The adulteration of a product may result from the addition of a substance deemed illegal under the applicable law (Cass. Crim., 5 September 2000, No. 99-85437) or, more generally, from “recourse to unlawful processing that fails to comply with the regulations in place, with the effect of altering the substance” (Cass. Crim., 23 January 2001, No. 00-82000).
Directive No. 95/2/EC of the European Parliament and the Council of 20 February 1995 “on food additives other than colours and sweeteners” (Official Journal No. L 61 of 18 March 1995, p.1) stipulates that the additives listed in Annexes III and IV “may only be used in the foodstuffs referred to in [the said] Annexes and under the conditions specified therein” (Article 2, paragraph 4 of the Directive). Sodium benzoate appears in Annex III (Part A). Unlike “liquid” food supplements, “solid” food supplements are not mentioned in the list of foodstuffs for which they can be used. This Directive was transposed into French law by the Order of 2 October 1997 “on additives usable in the manufacture of foodstuffs intended for human consumption” (Official Journal No. 260 of 8 November 1997, p. 16265).


ITEMID: 001-93614
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GORGIEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1+6-3-d
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1962 and lives in Kriva Palanka.
6. He worked as a sanitary inspector at a border post near the city of Delčevo. His tasks included sending samples of imported products to laboratories for further examination. The examination fees were paid directly to the laboratories by the importers.
7. On 22 July 1999 a company from Vinica (“the company”), which imported goods on a regular basis, presented a shipment for inspection at the border post. Mr A., the owner and manager of the company, allegedly agreed with the applicant to meet on 26 July 1999.
8. According to Mr A., they met on 27 July 1999, when the applicant told him that he could pay the examination fees directly to the applicant, who would then send fewer samples for inspection. As he suspected that the applicant was actually demanding a bribe, Mr A. reported the matter to the police. The police then suggested that he should offer the applicant a sum of money in banknotes which they had marked in order to keep track of them.
9. On 29 July 1999 Mr A. and his business partner and relative, Mr P., who was aware of the alleged conversation, came to the border post to look for the applicant. The applicant and Mr A. met in a restaurant near the applicant’s office. Mr A. gave 400 German marks (DEM) to the applicant and left. The applicant was subsequently arrested in front of his car.
10. On 29 July 1999 the investigating judge of the Delčevo Court of First Instance (“the trial court”) started an investigation on the grounds of reasonable suspicion that the applicant had accepted a bribe of DEM 400. The applicant was remanded in custody for 30 days as it was feared that he might obstruct the investigation by interfering with witnesses if released. A warrant to search his home was also obtained and the search was conducted on the same day.
11. According to the depositions taken in the course of these proceedings, the applicant stated, inter alia:
“... Mr A. objected to the fact that I had taken too many samples for examination. I told him that I could not avoid sending samples for examination and that I had taken as many samples as necessary. Then he promised me that he would reward me if I showed restraint and avoided sending samples for examination. It was just a general proposition, without any exact figures as to the amount. I refused. Today, he came to the border post and asked me to meet him. We went to the restaurant and he repeated his offer. I refused again. He then put something in my pocket and left the restaurant. I was surprised at first and saw that it was DEM 400. I put it in my trouser pocket and went out to look for him. As he had gone, I was afraid and did not know whether I should go to the police. That’s why I went to my car. There I was approached by several policemen who searched me and asked where the money had come from. As I was afraid, I told them that I had obtained it in Kočani... I would just like to add that there was nobody but the waiter in the restaurant during my meeting with Mr A...”
12. On 4 August 1999 the investigating judge examined Mr A. and Mr P. The former stated, inter alia:
“... On Tuesday [date not specified], I arrived at the applicant’s office and we both went to the restaurant. Then, he told me that ‘he had examined [samples for] me for two years’ ... he therefore told me that we should agree not to send any samples of imported products for examination... He also said that I should not pay [the examination fees] directly to [the name of the examination institutions], but should give the money to him. He said that the tariff per vehicle was DEM 200 or DEM 400 and that I should decide how much I would give... After I had left for Vinica, I considered the consequences of giving the money to the inspector [referring to the applicant] ... and decided to inform the chief inspector of Kočani about the case again... The chief inspector took [the two banknotes of DEM 200] from me and returned them on Thursday, 29 July 1999. At about 1 p.m. the same day, Mr P. and I arrived at the border post. I entered [the applicant’s] office, but he was not there. Then he saw me... Then we went to the restaurant. We sat at a table, and Mr P. sat at a nearby table. There was nobody else in the restaurant... Since he knew that I would give him money, he asked me ‘Do you have the money?’. I didn’t reply, but took DEM 400 (2x DEM 200) out of my shirt pocket, [the applicant] took it with his right hand and put it in his shirt pocket. I told him that it was DEM 400 and asked if it was enough. He took the money out of his shirt pocket, looked at it and put in his trouser pocket. We stayed in the restaurant for about five minutes. The money changed hands at the beginning... I wish to add that on 29 July 1999 I noticed two persons in plain clothes, a man and woman, sitting in the restaurant... I assume they were policemen...”
13. Mr P. stated, inter alia:
“... I consider that the applicant treated us badly as he did not take the usual quantities of samples for examination... We complained of his behaviour to the Customs Office, but they told us that nothing could be done... Five or six days before the day in question, Mr A. told me that the applicant had arranged a meeting with him, as the latter was no longer satisfied with the quantities of samples he had taken, but that he had asked for money to let our trucks through without difficulty. We informed the police, who told us that we must provide proof. On 29 July 1999 I went with Mr A. to the border post and I was in the restaurant when the money was given to the applicant. I was sitting at a nearby table when I heard the applicant saying that he wouldn’t work for the State anymore, but for himself. Then I heard the applicant asking about the amount of money... I would like to add that when the applicant asked for the money, Mr A. put banknotes into his hand. He counted the money, saying that it was not enough. At that time, there were two people, a man and woman, in the restaurant, but I don’t know who they were...”
14. On 5 August 1999 the investigating judge took a statement from Mr D., a market inspector who shared the office with the applicant, who stated, inter alia:
“... On 29 July 1999 ... Mr A. came into my office asking where my colleague [the applicant] was. I told him that he had left. We talked for about an hour about various business issues. On his way out, he asked me to join him at the restaurant for a drink. I didn’t answer. After half an hour, [the applicant] arrived... I told him that Mr A. was looking for him and had invited us for a drink at the restaurant. [The applicant] then left, but I don’t know where he went. After five minutes, [the applicant] returned to the office looking distressed. He asked what I was doing and left the office without saying anything. After five minutes, I had to leave the office and saw the applicant surrounded by four men and a woman. One of them asked me where I was from and called me to act as a witness while the applicant was searched. They informed me that they were policemen. The applicant took DEM 400 out of his pocket ... and we all went to the police station, where I made my statement ...”
15. On 10 August 1999 the applicant was released from detention.
16. On 13 September 1999 the public prosecutor lodged an indictment charging the applicant that he had accepted a bribe in order not to take and send samples of imported products to laboratories for examination. The indictment was based on the events as described by Mr A. (see paragraphs 7-9 above).
17. On 11 February 2000 the trial court held a public hearing. It heard oral evidence from the applicant, Mr A. and Mr P. and admitted some documentary evidence. The applicant stated, inter alia, that he had been “set up” by Mr A. and intended to report him to the police, but that he had been prevented from doing so by the police officers who had arrested him before he got into his car. He also said that he might have wrongly stated in the pre-trial proceedings that he had not obtained the money from Mr A., as he had been under stress.
18. Mr A. stated, inter alia:
“... I informed the police officers and after being told that I would not face any charges, I decided to offer him the money. I didn’t arrange anything with them [the police] before I went to Delčevo on 29 July 1999... [After the money had changed hands] I left and I don’t know what happened afterwards. At that time, besides us, there was a man and woman sitting at another table and two other persons. I can’t recall whether Mr P. was present when I gave the money to [the applicant]...”
19. Mr P. stated, inter alia:
“... It was I who insisted that Mr A. report [the applicant] to the police... I don’t know whether the police had any plan... During the meeting on 29 July 1999 there were other people in the restaurant who I didn’t know. It was me who left the restaurant first...”
20. The court also heard evidence from two witnesses called by the applicant concerning the events in the restaurant.
21. Mr T., a waiter at the restaurant, stated:
“As far as I can recall, Mr A. and the accused were sitting in the restaurant and stayed for about 5-6 minutes.”
22. Ms S., a cook at the restaurant, stated:
“As far as I can recall on the date in question, Mr A. and the accused were sitting in the restaurant... There was nobody else besides Mr T... I cannot say what they discussed or how they behaved. I think that they stayed for about fifteen minutes.”
23. On the same day, the trial court gave its judgment. It found the applicant guilty of accepting a bribe and sentenced him to three months’ imprisonment. It established that after the discussion of 27 July 1999 between the applicant and Mr A., the latter had notified the police and they had instructed him to give the applicant money and to inform them if he accepted it. It further established that after Mr A. had put the money in the applicant’s shirt pocket, the applicant had left the restaurant and gone into his office. After he left his office, the police, who had been informed about the event in advance, searched him and found the money.
24. The court rejected the applicant’s arguments and noted that his conduct immediately after he accepted the bribe did not suggest an intention to report the matter to the police. Referring to the statements made by the witnesses at the trial, the court concluded that the applicant had not taken any steps to return the money to Mr A. or to inform anyone. In support of its findings, it referred to the statement made by Mr. D., to whom the applicant had also failed to report the bribe. The court also found that the police had waited to see whether the applicant would report the bribe and had acted when there had been no reaction on his part. The penalty was determined on the basis of, inter alia, the applicant’s behaviour at the trial, the fact that he had previously performed his duties in accordance with the regulations and his lack of a criminal record.
25. The applicant appealed, arguing that the whole incident had been planned in advance and that he had been incited to commit the offence by the police and Mr A., and, accordingly, had been the victim of entrapment. He complained that the trial court had not taken into consideration the statements of the two witnesses who worked at the restaurant, who denied that anyone other than the applicant and Mr A. had been present when the money had changed hands. The testimony of Mr P., who in addition to being Mr A.’s business partner was also a relative, was therefore false. He also submitted a written statement made by Mr T. on 9 April 2000, which read, inter alia:
“... I saw Mr A. reach towards the pocket of [the applicant’s] shirt. I cannot say whether he put something in or took something out, but I remember that Mr A. left the restaurant immediately afterwards. At that moment, they did not speak to each other. After a couple of seconds [the applicant] quickly left the restaurant...”
26. The applicant further argued that the trial court had misinterpreted Mr D.’s statement concerning his behaviour after he left the restaurant. In that connection, he requested that another person, Mr O., be heard as a witness on the issue whether he had gone directly to his car or to his office after leaving the restaurant. He submitted a written statement of 9 April 2000 by Mr O. saying that he had seen the applicant go to his car after leaving the restaurant. He requested the Court of Appeal to hold a hearing.
27. At a hearing on 27 September 2000, the Štip Court of Appeal dismissed the applicant’s appeal and upheld the trial court’s verdict. It found that the trial court had correctly established the facts and applied the law. It had given sufficient reasons for its findings and these had been substantiated by the relevant evidence it had taken into consideration. The Court of Appeal rejected the applicant’s allegations that he had been entrapped by an agent provocateur (Mr A.) and that he had not intended to keep the money, but to report the matter to the police. It noted that the applicant had told Mr A. that he was changing his working methods and that instead of paying the examination fees to the laboratory, he could pay them directly to the applicant. It also held:
“... if the applicant had had no intention of taking and keeping the money, he should have reacted immediately. On the contrary, in Mr A.’s presence, he put the money in his pocket and said that it ‘covered’ only the current shipment and that they would agree upon further shipments. After Mr A. had left the restaurant, the applicant did not report the matter to the police or to anyone else. Indeed, he returned to his office and failed to inform Mr D., his colleague, about the gift received from Mr A. After several minutes, he left the office and was arrested by the police. If his intention was not to keep the money, he could have made that clear by reacting in the restaurant, especially as there were restaurant employees present. Instead, he went to his office and failed to inform Mr D. about the money...”
28. With regard to the alleged presence of Mr P. in the restaurant when the money was given to the applicant, the Court of Appeal held:
“... Whether Mr P. was in the restaurant during the conversation between the applicant and Mr A. is irrelevant, as he had known about the earlier discussion between them and about the applicant’s statement that they would find a new way of dealing with matters concerning the imports and samples. Mr P.’s presence in the restaurant at the material time is irrelevant...”
29. With regard to the written statements of the witnesses and the applicant’s request for a further witness, Mr O., to be examined, the Court of Appeal held that the written statements had been examined by the trial court and were irrelevant to the final conclusion.
30. The applicant and his lawyer submitted separate requests for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда – “the extraordinary request”) before the Supreme Court. These requests were sent by registered mail and according to the delivery receipt, they were received by the trial court on 27 February and 19 March 2001, respectively. In the requests, the applicant complained, inter alia, that the lower courts had based their decisions on evidence which should not have been taken into consideration, as it had been obtained as a result of the police incitement to commit the offence and Mr A.’s role as an agent provocateur.
31. In a letter which was also sent by registered mail and received by the trial court on 12 June 2001, the applicant supplemented his extraordinary request, arguing that the facts as established by the Court of Appeal contradicted the findings of the trial court, and that its finding that Mr O. had already been examined by the trial court was erroneous. He also alleged that the Court of Appeal had not examined his appeal in full, in particular concerning the role of Mr A. as an agent provocateur and the role of the police.
32. On 21 March 2001 the public prosecutor rejected the applicant’s application to lodge a request for the protection of legality (барање за заштита на законитоста) with the Supreme Court.
33. On 18 September 2001 the Supreme Court dismissed the extraordinary request lodged by the applicant’s lawyer, which it found had been submitted within the statutory time-limit, and upheld the lower courts’ decisions. It held, inter alia, that the applicant’s conviction had not been based on inadmissible evidence, but on a range of written and oral evidence adduced during the proceedings. It did not comment on the applicant’s extraordinary request and supplementary submission.
34. On 17 October 2001 the State President replaced the applicant’s sentence with a suspended term of two years’ imprisonment.
35. Section 142 of the 1997 Act provided that, where there was a suspicion that an offence had been committed, the Ministry of the Interior (“the Ministry”) was authorised to take measures in order, inter alia, to find the perpetrator or to prevent him or her from fleeing or going into hiding. In order to execute its tasks, the Ministry could, in addition to the measures and actions listed in the second paragraph of that section, take such other measures and actions as might be necessary.
36. Section 142-b of the new Act provides that, with a view to securing information and evidence which cannot be otherwise secured, or the gathering of which would entail difficulties, special investigating techniques may be ordered where there are reasonable grounds for suspicion that certain criminal offences have been committed by, inter alia, an organised group. A simulated offer and acceptance of a bribe is among the permitted special investigating techniques (section 142-b § 1 (4)). Special investigating techniques must not be used to incite the commission of an offence. Persons using the special investigating techniques in order to secure information and evidence necessary for a successful investigation are not liable to prosecution.
37. Section 142-c provides that information, documents and objects obtained through a special investigating measure may be used as evidence in criminal proceedings.
38. Section 142-d §§ 1, 2 and 3 provide that, at the pre-trial stage, special investigating techniques may be ordered by the public prosecutor or an investigating judge. After an investigation has been commenced, the use of such techniques may be ordered only by an investigating judge. At the pre-trial stage, the use of special investigating techniques may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision, but only in respect of a person whose identity is unknown.
39. Under section 142-e §§ 3 and 4, special investigating techniques may be used for four months at most. Evidence obtained through special investigating techniques cannot be used at trial if the techniques were applied without an order by an investigating judge or the public prosecutor or were contrary to the Act.
40. Section 32 (1) provides that an importer pays the examination fees concerning the sanitary validity of food and products for general use.
41. Section 3 of these Rules provides that the importer pays in the State budget the fees for taking and sending samples to laboratories. The importer pays to laboratories the fees for examination of samples, according to an invoice that the laboratory would deliver to him or her.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-112089
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KRASNIQI v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1959 and lives in Sisak, Croatia.
6. The Novska Police authority lodged a criminal complaint against the applicant with the Sisak County State Attorney’s Office on 30 December 1991, alleging that he had committed four murders. The applicant was arrested on 6 January 1992 and placed in pre-trial detention.
7. By a judgment of 5 October 1992 the Zagreb Military Court acquitted the applicant and he was released. On 7 July 1993, however, the Supreme Court quashed the first-instance judgment and ordered a retrial.
8. On 2 April 1998 the Sisak County State Attorney’s Office indicted the applicant in the Sisak County Court on four counts of murder. The applicant was tried in his absence because his whereabouts were unknown to the authorities. On 25 March 1999 he was found guilty of all four counts of murder and sentenced to twenty years’ imprisonment. This judgment was upheld by the Supreme Court on 14 January 2003, likewise in the absence of the applicant.
9. An international arrest warrant was issued in respect of the applicant. He was arrested in Germany on 8 April 2006, extradited to Croatia on 1 February 2007 and was placed in pre-trial detention in Croatia on that date.
10. On 21 February 2007 the criminal proceedings against the applicant were reopened.
11. On 1 March 2007 the Sisak County Court ordered the applicant’s pre-trial detention under Article 102 § 1(1) and (4) of the Code of Criminal Procedure. The applicant’s pre-trial detention was regularly extended on the same grounds.
12. The Sisak County Court confirmed its previous verdict on 7 May 2008, sentencing the applicant to twenty years’ imprisonment. On the same date it extended the applicant’s detention until 1 June 2009 or until the judgment entered into force.
13. The applicant lodged an appeal against the decision extending his detention. It was dismissed by the Supreme Court on 25 August 2008.
14. The first-instance judgment was upheld by the Supreme Court on 3 December 2008 in its capacity as an appeal court. On 17 March 2009 the applicant lodged a further appeal with the Supreme Court, in its capacity as a court of third instance.
15. On 20 March 2009 the applicant lodged with the Sisak County Court an application for the detention order against him to be lifted. He argued that the maximum statutory detention period where an appellate judgment had been adopted and against which an appeal was allowed was three months. That period had expired on 3 March 2009. He therefore asked for his release. On 27 March 2009 the Sisak County Court dismissed the complaint without addressing the issue raised by the applicant.
16. The applicant’s subsequent constitutional complaint of 27 April 2009 was declared inadmissible on 26 May 2009 on the grounds that the impugned decision was not an act within the meaning of section 62 of the Constitutional Court Act. This decision was served on the applicant on 23 June 2009.
17. In the meantime, on 1 June 2009 the Sisak County Court extended the applicant’s detention under Article 109 § 3 of the Code of Criminal Procedure for a further nine months, i.e. until 1 March 2010. On 12 June 2009 the applicant lodged an appeal, arguing that the maximum period for which he could be detained had expired. This appeal was dismissed by the Supreme Court on 22 July 2009. The relevant part of that decision reads:
“The Supreme Court, as the court of second instance, considers that the first-instance court correctly established that in the present case the conditions for the extension of the overall detention of the accused, Zenel Krasniqi, under Article 109 § 2 of the Code of Criminal Procedure had been satisfied, and thus extended his overall detention for a further nine months.
In a non-final judgment of the Sisak County Court of 7 May 2008 ... the accused Zenel Krasniqi was found guilty ... and sentenced to twenty years’ imprisonment. That judgment ... was upheld by a judgment of the Supreme Court on 3 December 2008 ... against which the accused lodged an appeal. In view of the sentence given, the detention of the accused is obligatory under Article 102 § 4 of the Code of Criminal Procedure.
The accused was in detention between 6 January and 5 October 1992 (nine months) and also since 1 March 2007, so that the maximum period of detention [applicable to him], being three years under Article 109 § 1(5) of the Code of Criminal Procedure, was set to expire on 1 June 2009. Since the accused was, inter alia, convicted of the criminal offence of aggravated murder ... [which is] punishable by twenty years’ imprisonment, a court may, under Article 109 § 2 of the Code of Criminal Procedure, extend his overall detention for one quarter [of the term referred to in subparagraphs 4 and 5 of paragraph 1 of Article 109 of the Code of Criminal Procedure], that is to say for a further nine months.
Therefore, the Supreme Court finds that the extension of the accused’s detention for a further nine months by the first-instance court was well founded and lawful ...
...
The accused’s submissions based on Article 109 § 4 of the Code of Criminal Procedure in which he argued that his detention had to be lifted because more than three months had passed since the second-instance judgment was adopted are also unfounded. The Supreme Court considers that where, as in the present case, a first-instance judgment and a second-instance judgment against which an appeal is allowed have been adopted within the time-limit for detention under Article 109 § 1 of the Code of Criminal Procedure, the overall duration of detention may be extended under Article 109 § 2 of the Code of Criminal Procedure, and after that time-limit expires, it may still be extended under Article 109 § 4 of the Code of Criminal Procedure.”
18. The applicant then lodged a constitutional complaint, whereby he reiterated the arguments from his appeal as regards the issue of the lawfulness of his detention. On 16 September 2009 the Constitutional Court dismissed the complaint, endorsing the reasoning of the Supreme Court.
19. On 22 October 2009 the Supreme Court in its capacity as a court of third instance upheld the applicant’s conviction. Thus it became final and enforceable.
20. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:
“(1) Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:
1. six months for offences carrying a statutory maximum sentence of three years’ imprisonment;
2. one year for offences carrying a statutory maximum sentence of five years’ imprisonment;
3. eighteen months for offences carrying a statutory maximum sentence of eight years’ imprisonment;
4. two years for offences carrying a sentence of more than eight years’ imprisonment;
5. three years for offences carrying a sentence of long-term imprisonment.
(2) In cases where a judgment has been adopted but has not yet entered into force, the maximum term of pre-trial detention may be extended for one sixth of the term referred to in subparagraphs 1 to 3 of paragraph 1 of this provision until the judgment becomes final, and for one quarter of the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision.
(3) Where a first-instance judgment has been quashed on appeal, following an application by the State Attorney and where important reasons exist, the Supreme Court may extend the term of detention referred to in subparagraphs 1 to 3 of paragraph 1 of this provision for another six months and the term referred to in subparagraphs 4 and 5 of paragraph 1 of this provision for another year.
(4) Following the adoption of an appellate judgment against which an appeal is allowed, detention may last until the judgment becomes final, for a maximum period of three months.
(5) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison, but for no longer than the duration of his prison term.”
21. The relevant part of the guidelines adopted at a meeting of the Criminal Division of the Supreme Court on 23 March 2006 and published by the Supreme Court, reads:
“...
Where a first-instance judgment and a second-instance decision quashing the first-instance judgment were adopted within the time prescribed for detention under Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP and after the expiry of that period also under Article 109 § 3 of the CPP.
The overall duration of detention under Article 109 § 3 of the CPP is to be extended only after the time-limit prescribed in Article 109 § 2 of the CPP has expired, irrespective of whether the first-instance court has adopted a fresh judgment in the retrial proceedings.
The maximum period of detention where a judgment has been adopted but has not yet become enforceable is to be fixed according to the criminal offence the accused was found guilty of, even where the State Attorney has filed an appeal on any grounds.
Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CPP.
Where a first-instance judgment or a second-instance judgment against which an appeal is allowed have been adopted within the time-limits set by Article 109 § 2 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP. After the time-limit set by that Article expires, detention may be extended under Article 109 § 4 of the CPP, after the expiration of the time-limit under Article 109 § 2 of the CPP.
Where a second-instance decision against which an appeal is allowed has been adopted within the time-limit set by Article 109 § 3 of the CPP, the overall duration of detention may be extended under Article 109 § 4 of the CPP, after the expiration of the time-limit set by Article 109 § 3 of the CPP.
Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 1 of the CPP, the overall duration of detention may be extended under Article 109 § 2 of the CPP, after the expiration of the time-limit set by Article 109 § 3 of the CPP.
Where a second-instance decision against which an appeal is allowed has been quashed within the time-limit set by Article 109 § 2 of the CPP, the overall duration of detention may be extended under Article 109 § 3 of the CPP.
...”
22. The Supreme Court’s practice as regards the interpretation of Article 109 of the Code of Criminal Procedure may be found in its case-law.
It’s decision no. II 5 Kr 5/04-2 of 28 April 2004 reads in its relevant part as follows:
“... the Supreme Court has established that the accused, M.M., has been detained since 3 October 2003 on the basis of Article 102 § 1(3) of the Code of Criminal procedure (“CPP”) and that the maximum period of detention under Article 109 § 1(1) of the CPP expired on 3 April 2004. Since the appeal decision quashing [the first-instance judgment] was adopted on 23 April 2004, the detention during the appeal proceedings from the adoption of the first-instance judgment on 26 March 2004 was based on the time-limits set by Article 109 § 2 of the CPP.
Therefore, the statutory requirements for extending the accused’s detention for a further six months under Article 109 § 3 of the CPP have been satisfied ...”
The relevant part of decision no. II 5 Kr 8/07-2 of 23 November 2007 reads:
“The accused, V.D., has been detained since 27 February 2004 and the maximum period of detention under Article 109 § 1(1) and § 2 of the Code of Criminal Procedure (“CPP”) expires on 27 November 2007.
The criminal proceedings are currently pending at third instance. The first-instance judgment of the Vukovar County Court was quashed by this court. After that, a fresh first-instance judgment was adopted, which was upheld by a judgment of the Supreme Court of 27 September 2007 ... by which the accused was sentenced to long-term imprisonment for forty years on account of two criminal offences of aggravated murder ... Under Article 109 § 1(1) and § 2 of the CPP, the maximum period of detention is three years and nine months, as the criminal offence in issue is punishable with long-term imprisonment. That period expires on 27 November 2007. Since the proceedings in which the first-instance judgment has been quashed are still pending, the accused’s detention may be extended for one more year.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-87207
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LIBERTY AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom’s radio stations (at Clwyd and Chester), a link which also carried much of Ireland’s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF.
6. On 9 September 1999, having seen a television report on the alleged activities of the ETF, the applicant organisations requested the Interception of Communications Tribunal (“the ICT”: see paragraphs 28-30 below) to investigate the lawfulness of any warrants which had been issued in respect of the applicants’ communications between England and Wales and Ireland. On 19 October 1999 an official of the ICT confirmed that an investigation would proceed and added:
“... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘the 1985 Act’, see paragraphs 16-33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.”
7. By a letter dated 16 December 1999 the ICT confirmed that it had thoroughly investigated the matter and was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in relation to the relevant warrant or certificate.
8. By a letter dated 9 September the applicants complained to the DPP of an unlawful interception, requesting the prosecution of those responsible. The DPP passed the matter to the Metropolitan Police for investigation. By a letter dated 7 October 1999 the police explained that no investigation could be completed until the ICT had investigated and that a police investigation might then follow if it could be shown that an unwarranted interception had taken place or if any of the other conditions set out in section 1(2)-(4) of the 1985 Act had not been met. The applicants pointed out, in their letter of 12 October 1999, that the vague, albeit statutory, response of the ICT would mean that they would not know whether a warrant had been issued or, if it had, whether it had been complied with. They would not, therefore, be in a position to make submissions to the police after the ICT investigation as to whether or not a criminal investigation was warranted. The applicants asked if, and if so how, the police could establish for themselves whether or not a warrant had been issued, so as to decide whether an investigation was required, and how the police would investigate, assuming there had been no warrant.
9. The DPP responded on 19 October 1999 that the police had to await the ICT decision, and the police responded on 9 November 1999 that the applicants’ concerns were receiving the fullest attention, but that they were unable to enter into discussion on matters of internal procedure and inter-departmental investigation.
10. On 21 December 1999 the applicants wrote to the police pointing out that, having received the decision of the ICT, they still did not know whether or not there had been a warrant or whether there had been unlawful interception. The response, dated 17 January 2000, assured the applicants that police officers were making enquires with the relevant agencies with a view to establishing whether there had been a breach of section 1 of the 1985 Act and identifying the appropriate investigative authority. The police informed the applicants by a letter dated 31 March 2000 that their enquiries continued, and, by a letter dated 13 April 2000, that these enquiries had not revealed an offence contrary to section 1 of the 1985 Act.
11. On 15 December 2000 the former statutory regime for the interception of communications was replaced by the Regulation of Investigatory Powers Act 2000 (see paragraphs 34-39 below) and a new tribunal, the IPT, was created.
12. On 13 August 2001 the applicants began proceedings in the IPT against the security and intelligence agencies of the United Kingdom, complaining of interferences with their rights to privacy for their telephone and other communications from 2 October 2000 onwards (British-Irish Rights Watch and others v. The Security Service and others, IPT/01/62/CH). The IPT, sitting as its President and Vice-President (a Court of Appeal and a High Court judge), had security clearance and was able to proceed in the light not just of open evidence filed by the defendant services but also confidential evidence, which could not be made public for reasons of national security.
13. On 9 December 2004 the IPT made a number of preliminary rulings on points of law. Although the applicants had initially formulated a number of claims, by the time of the ruling these had been narrowed down to a single complaint about the lawfulness of the “filtering process”, whereby communications between the United Kingdom and an external source, captured under a warrant pursuant to section 8(4) of the 2000 Act (which had replaced section 3(2) of the 1985 Act: see paragraphs 34-39 below), were sorted and accessed pursuant to secret selection criteria. The question was, therefore, whether “the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8 § 2 [of the Convention] because it is not ‘in accordance with the law’”.
14. The IPT found that the difference between the warrant schemes for interception of internal and external communications was justifiable, because it was more necessary for additional care to be taken with regard to interference with privacy by a Government in relation to domestic telecommunications, given the substantial potential control it exercised in this field; and also because its knowledge of, and control over, external communications was likely to be much less extensive.
15. As to whether the law was sufficiently accessible and foreseeable for the purposes of Article 8 § 2, the IPT observed:
“The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3) . The Complainants’ Counsel complains that there is no ‘publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual’s telephone call is proportionate’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria.
To that duty there is added the existence of seven safeguards listed by the Respondents’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee (‘JIC’) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ...
It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants’ Counsel has pointed out that it appears from the Respondents’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents’ evidence, should itself be disclosed in the Code of Practice.
We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards.
... [F]oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ...
The provisions, in this case the right to intercept and access material covered by a s.8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck.”
16. During the period at issue in this application the relevant legislation was sections 1-10 of the Interception of Communications Act 1985 (“the 1985 Act”), which came into force on 10 April 1986 and was repealed by the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”).
17. Pursuant to section 1 of the 1985 Act, a person who intentionally intercepted a communication in the course of its transmission by post or by means of a public telecommunications system was guilty of an offence. A number of exceptions were made, the relevant one being a communication intercepted pursuant to a warrant issued by the Secretary of State under section 2 of the 1985 Act and in accordance with a certificate issued under section 3(2)(b) of the 1985 Act.
18. The Secretary of State’s power to issue a warrant under section 2 of the 1985 Act could be exercised only if he considered the warrant necessary:
“(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime; or
(c) for the purpose of safeguarding the economic well-being of the United Kingdom.”
19. The term “serious crime” was defined by section 10(3) of the Act as follows:
“For the purposes of [the 1985 Act], conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as a serious crime if, and only if –
(a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or
(b) the offence, or one of the offences, is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.”
20. The scope of the term “national security” was clarified by the Commissioner appointed under the 1985 Act. In his 1986 report he stated (§ 27) that he had adopted the following definition: activities “which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means”.
21. In determining whether a warrant was necessary for one of the three reasons set out in section 2(2) of the 1985 Act, the Secretary of State was under a duty to take into account whether the information which it was considered necessary to acquire could reasonably be acquired by other means (section 2(3)). In addition, warrants to safeguard the economic well-being of the United Kingdom could not be issued unless the information to be acquired related to the acts or intentions of persons outside the British Islands (section 2(4)). A warrant required the person to whom it was addressed to intercept, in the course of their transmission by post or by means of a public telecommunications system, such communications as were described in the warrant.
22. Two types of warrant were permitted by section 3 of the 1985 Act. The first, a “section 3(1) warrant”, was a warrant that required the interception of:
“(a) such communications as are sent to or from one or more addresses specified in the warrant, being an address or addresses likely to be used for the transmission of communications to or from– (i) one particular person specified or described in the warrant; or (ii) one particular set of premises so specified or described; and
(b) such other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.”
By section 10(1) of the 1985 Act, the word “person” was defined to include any organisation or combination of persons and the word “address” was defined to mean any postal or telecommunications address.
23. The second type of warrant, a “section 3(2) warrant”, was one that required the interception, in the course of transmission by means of a public telecommunications system, of:
“(i) such external communications as are described in the warrant; and
(ii) such other communications (if any) as it is necessary to intercept in order to intercept such external communications as are so described ...”.
24. When he issued a section 3(2) warrant, the Secretary of State was required to issue also a certificate containing a description of the intercepted material the examination of which he considered necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State’s economic well-being (section 3(2)(b)). A section 3(2) warrant could not specify an address in the British Islands for the purpose of including communications sent to or from that address in the certified material unless-
“3(3) (a) the Secretary of State considers that the examination of communications sent to or from that address is necessary for the purpose of preventing or detecting acts of terrorism; and
(b) communications sent to or from that address are included in the certified material only in so far as they are sent within such a period, not exceeding three months, as is specified in the certificate.”
25. Section 3(2) warrants could be issued only under the hand of the Secretary of State or a permitted official of high rank with the written authorisation of the Secretary of State. If issued under the hand of the Secretary of State, the warrant was valid for two months; if by another official, it was valid for two days. Only the Secretary of State could renew a warrant. If the Secretary of State considered that a warrant was no longer necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State’s economic well-being, he was under a duty to cancel it (section 4).
26. The annual report of the Commissioner for 1986 explained the difference between warrants issued under section 3(1) and under section 3(2):
“There are a number of differences ... But the essential differences may be summarised as follows:
(i) Section 3(2) warrants apply only to external telecommunications;
(ii) whereas section 3(1) warrants only apply to communications to or from one particular person ... or one particular set of premises, Section 3(2) warrants are not so confined; but
(iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to issue a certificate describing the material which it is desired to intercept; and which he regards as necessary to examine for any of the purposes set out in Section 2(2).
So the authority to intercept granted by the Secretary of State under Section 3(2) is limited not so much by reference to the target, as it is under section 3(1), but by reference to the material. It follows that in relation to Section 3(2) warrants, I have had to consider first, whether the warrant applies to external communications only, and, secondly, whether the certified material satisfies the Section 2(2) criteria. ...
There is a further important limitation on Section 3(2) warrants. I have said that the authority granted by the Secretary of State is limited by reference to the material specified in the certificate, rather than the targets named in the warrants. This distinction is further underlined by Section 3(3) which provides that material specified shall not include the address in the British Islands for the purpose of including communications sent to or from that address, except in the case of counter-terrorism. So if, for example in a case of subversion the Security Service wishes to intercept external communications to or from a resident of the British Islands, he could not do so under a Section 3(2) warrant by asking for communications sent to or from his address to be included in the certified material. But it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) known as an overlapping warrant, in addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which requires this to be done. But it is obviously a sound practice, and wholly consistent with the legislative intention underlying Section 3(3). Accordingly I would recommend that where it is desired to intercept communications to or from an individual residing in the British Islands, as a separate target, then in all cases other than counter-terrorism there should be a separate warrant under Section 3(1), even though the communications may already be covered by a warrant under Section 3(3). The point is not without practical importance. For the definition of “relevant warrant” and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the Tribunal has power to investigate warrants issued under section 3(1) and certificates under section 3(2) where an address is specified in the certificate, it has no such power to investigate Section 3(2) warrants, where an address is not so certified.”
27. Section 6 of the 1985 Act was entitled “Safeguards” and read as follows:
“(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing-
(a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and
(b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.
(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely-
(a) the extent to which the material is disclosed;
(b) the number of persons to whom any of the material is disclosed;
(c) the extent to which the material is copied; and
(d) the number of copies made of any of the material;
is limited to the minimum that is necessary as mentioned in section 2 (2) above.
(3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2 (2) above.”
28. Section 7 of the 1985 Act provided for a Tribunal to investigate complaints from any person who believed that communications sent by or to him had been intercepted. Its jurisdiction, so far as material, was limited to investigating whether there was or had been a “relevant warrant” or a “relevant certificate” and, where there was or had been, whether there had been any contravention of sections 2-5 of the 1985 Act in relation to that warrant or certificate. Section 7(9) read, in so far as relevant, as follows:
“For the purposes of this section –
(a) a warrant is a relevant warrant in relation to an applicant if –
(i) the applicant is specified or described in the warrant; or
(ii) an address used for the transmission of communications to or from a set of premises in the British Islands where the applicant resides or works is so specified;
(b) a certificate is a relevant certificate in relation to an applicant if and to the extent that an address used as mentioned in paragraph (a)(ii) above is specified in the certificate for the purpose of including communications sent to or from that address in the certified material.”
29. The ICT applied the principles applicable by a court on an application for judicial review. If it found there had been a contravention of the provisions of the Act, it was to give notice of that finding to the applicant, make a report to the Prime Minister and to the Commissioner appointed under the Act and, where it thought fit, make an order quashing the relevant warrant, directing the destruction of the material intercepted and/or directing the Secretary of State to pay compensation. In other cases, the ICT was to give notice to the applicant stating that there had been no contravention of sections 2-5 of the Act.
30. The ICT consisted of five members, each of whom was required to be a qualified lawyer of not less than ten years standing. They held office for a five-year period and could be re-appointed. The decisions of the ICT were not subject to appeal.
31. Section 8 provided that a Commissioner be appointed by the Prime Minister. He or she was required to be a person who held, or who had held, high judicial office. The Commissioner’s functions included the following:
– to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2-5 of the 1985 Act;
– to give to the ICT all such assistance as it might require for the purpose of enabling it to carry out its functions;
– to keep under review the adequacy of the arrangements made under section 6 for safeguarding intercepted material and destroying it where its retention was no longer necessary;
– to report to the Prime Minister if there appeared to have been a contravention of sections 2-5 which had not been reported by the ICT or if the arrangements under section 6 were inadequate;
– to make an annual report to the Prime Minister on the exercise of the Commissioner’s functions. This report had to be laid before the Houses of Parliament. The Prime Minister had the power to exclude any matter from the report if publication would have been prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report had to state if any matter had been so excluded.
32. In his first report as Commissioner, in 1992, Sir Thomas Bingham MR, as he then was, explained his own role as part of the safeguards inherent in the 1985 Act as follows:
“The third major safeguard is provided by the Commissioner himself. While there is nothing to prevent consultation of the Commissioner before a warrant is issued, it is not the practice to consult him in advance and such consultation on a routine basis would not be practicable. So the Commissioner’s view is largely retrospective, to check that warrants have not been issued in contravention of the Act and that appropriate procedures were followed. To that end, I have visited all the warrant issuing departments and agencies named in this report, in most cases more than once, and discussed at some length the background to the warrant applications. I have also discussed the procedure for seeking warrants with officials at various levels in all the initiating bodies and presenting departments. I have inspected a significant number of warrants, some chosen by me at random, some put before me because it was felt that I should see them. Although I have described ... a number of instances in which mistakes were made or mishaps occurred, I have seen no case in which the statutory restrictions were deliberately evaded or corners knowingly cut. A salutary practice has grown up by which the Commissioner’s attention is specifically drawn to any case in which an error or contravention of the Act has occurred: I accordingly believe that there has been no such case during 1992 of which I am unaware.”
Similar conclusions about the authorities’ compliance with the law were drawn by all the Commissioners in their reports during the 1990s.
33. In each of the annual reports made under the 1985 Act the Commissioner stated that in his view the arrangements made under section 6 of the 1985 were adequate and complied with, without revealing what the arrangements were. In the 1989 Report the Commissioner noted at § 9 that there had been technological advances in the telecommunications field which had “necessitated the making of further arrangements by the Secretary of State for the safeguarding of material under section 6 of the [1985 Act]”. The Commissioner stated that he had reviewed the adequacy of the new arrangements. For the year 1990, the Commissioner recorded that, as a result of a new practice of the police disclosing some material to the Security Service, a further change in the section 6 arrangements had been required. The Commissioner said in the 1990 Report that he was “satisfied with the adequacy of the new arrangements” (1990 Report at § 18). In the 1991 Report, the Commissioner stated that there had been some minor changes to the section 6 arrangements and confirmed that he was satisfied with the arrangements as modified (§ 29 of the 1991 Report). In the 1993 Report, the Commissioner said at § 11:
“Some of the written statements of section 6 safeguards which I inspected required to be updated to take account of changes in the public telecommunications market since they had been drafted and approved. Other statements could, as it seemed to me, be improved by more explicit rules governing the circumstances and manner in which, and the extent to which, intercept material could be copied. It also seemed to me that it would be advantageous, where this was not already done, to remind all involved m handling intercept material on a regular basis of the safeguards to which they were subject, securing written acknowledgements that the safeguards had been read and understood. These suggestions appeared to be readily accepted by the bodies concerned. They did not in my view indicate any failure to comply with section 6 of the Act.”
In his first year as Commissioner, Lord Nolan reported the following on this issue of section 6 safeguards (1994 Report, § 6):
“Like my predecessors, I have on each of my visits considered and discussed the arrangements made by the Secretary of State under section 6 for the purpose of limiting the dissemination and retention of intercepted material to what is necessary within the meaning of section 2. Each agency has its own set of such arrangements, and there are understandable variations between them. For example, the practical considerations involved in deciding what is necessary in the interests of national security, or the economic well-being of the United Kingdom (the areas with which the Security Service and the Secret Intelligence Service are almost exclusively concerned) are somewhat different from those involved in the prevention and detection of serious criminal offences (with which the police forces and HM Customs & Excise are almost exclusively concerned). I am satisfied that all of the agendas are operating within the existing approved safeguards under the terms of the arrangements as they stand ...”
34. The 2000 Act came into force on 15 December 2000. The explanatory memorandum described the main purpose of the Act as being to ensure that the relevant investigatory powers were used in accordance with human rights. As to the first, interceptions of communications, the 2000 Act repealed, inter alia, sections 1-10 of the 1985 Act and provides for a new regime for the interception of communications.
35. The 2000 Act is designed to cover the purposes for which the relevant investigatory powers may be used, which authorities can use the powers, who should authorise each use of the power, the use that can be made of the material gained, judicial oversight and a means of redress for the individual.
36. A new Investigatory Powers Tribunal (“IPT”) assumed the responsibilities of the former ICT, of the Security Services Tribunal and of the Intelligence Services Tribunal. The Interception of Communications Commissioner continues to review the actions of the Secretary of State as regards warrants and certificates and to review the adequacy of the arrangements made for the execution of those warrants. He is also, as before, to assist the Tribunal. In addition, the Secretary of State is to consult about and to publish codes of practice relating to the exercise and performance of duties in relation to, inter alia, interceptions of communications.
37. Section 2(2) of the 2000 Act defines interception as follows:
“For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system if, and only if, he –
(a) so modifies or interferes with the system, or its operation,
(b) so monitors transmissions made by means of the system, or
(c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,
as to make some of all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”
38. Section 5(2) of the 2000 Act provides that the Secretary of State shall not issue an interception warrant unless he believes that the warrant is necessary, inter alia, in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
39. In addition to the general safeguards specified in section 15 of the Act, section 16 provides additional safeguards in the case of certificated warrants (namely warrants for interception of external communications supported by a certificate). In particular, section 16(1) provides that intercepted material is to be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it has been certified as material the examination of which is necessary for one of the above purposes and falls within subsection (2). Intercepted material falls within subsection (2) so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which is referable to an individual who is known to be for the time being in the British Isles and has as its purpose, or one of its purposes, the identification of material in communications sent by that person, or intended for him.
40. In its Ruling of 9 December 2004 (see paragraphs 13-15 above), the IPT set out the following extracts from the Interception of Communications Code of Practice issued pursuant to s. 71 of the 2000 Act (“the Code of Practice”). Subparagraph 4(2) of the Code of Practice deals with the application for a s. 8(1) warrant as follows :
“An application for a warrant is made to the Secretary of State . . . Each application, a copy of which must be retained by the applicant, should contain the following information :
• Background to the operation in question.
• Person or premises to which the application relates (and how the person or premises feature in the operation) .
• Description of the communications to be intercepted, details of communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant.
• Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate.
• An explanation of why the interception is considered to be necessary under the provisions of section 5(3).
• A consideration of why the conduct is to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
• A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application.
• Where an application is urgent, supporting justification should be provided.
• An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act .
The IPT continued:
“Applications for a s. 8(4) warrant are addressed in subparagraph 5 .2 of the Code of Practice :
‘An application for a warrant is made to the Secretary of State ... each application, a copy of which must be retained by the applicant, should contain the following information :
• Background to the operation in question [identical to the first bullet point in 4.2].
• Description of the communications ... [this is materially identical to the third bullet point in 4.1] .
• Description of the conduct to be authorised, which must be restricted to the interception of external communications, or to conduct necessary in order to intercept those external communications, where appropriate [compare the wording of the fourth bullet in 4 .2].
• The certificate that will regulate examination of intercepted material.
• An explanation of why the interception is considered to be necessary for one or more of the section 5(3) purposes [identical to the fifth bullet point in 4 .2].
• A consideration of why the conduct should be authorised by the warrant is proportionate . . . [identical to the sixth bullet point in 4 .2].
• A consideration of any unusual degree of collateral intrusion . . . [identical to the seventh bullet point in 4 .2].
• Where an application is urgent . . . [identical to the eighth bullet point in 4 .2].
• An assurance that intercepted material will be read, looked at or listened to only so far as it is certified, and it meets the conditions of sections 16(2) -16(6) of the Act.
• An assurance that all material intercepted will be handled in accordance with the safeguards required by sections 15 and 16 of the Act [these last two bullets of course are the equivalent to the last bullet point in 4 .2].
... By subparagraph 4(8), the s. 8(l) warrant instrument should include ‘the name or description of the interception subject or of the set of premises in relation to which the interception is to take place’ and by subparagraph 4(9) there is reference to the schedules required by s. 8(2) of [the 2000 Act]. The equivalent provision in relation to the format of the s. 8(4) warrant in subparagraph 5(9) does not of course identify a particular interception subject or premises, but requires inclusion in the warrant of a ‘description of the communications to be intercepted’.”
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