ITEMID: 001-73360
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DICKSON v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 12
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 4. The applicants were born in 1972 and 1958, respectively. The first applicant is in prison (Dovergate Prison, Uttoxeter) and the second applicant lives in Hull.
5. In 1994 the first applicant was convicted of murder and sentenced to life imprisonment with a tariff of 15 years. He is imprisoned in a private prison and his earliest expected release date is 2009. He has no children.
6. In 1999 he met the second applicant, while she was also imprisoned, by correspondence through a prison pen pal network. She has since been released, although it is not clear when. In 2001 the applicants married. The second applicant already had three children from other relationships.
7. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. Their solicitors made representations to the Secretary of State, relying on the length of the relationship and the fact that, given the first applicant’s earliest release date and the second applicant’s age, it was unlikely that the applicants would be able to have a child together without the use of artificial insemination facilities.
8. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the policy”):
“Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations:
- whether the provision of AI facilities is the only means by which conception is likely to occur
- whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent
- whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with AI
- whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release
- whether there is any evidence to suggest that the couple’s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother
- whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.”
He then gave his reasons for refusal in the present case. On the one hand, the second applicant would be 51 years old at the earliest possible date of release of the first applicant so that the likelihood of her being able to conceive naturally was small. Both applicants were also in full agreement about their wish to conceive artificially. However, on the other hand, and in the first place, the relationship was established while they were in prison and had not been tested in the normal environment of daily life. Secondly, there was insufficient provision in place to provide independently for the material welfare of any child which might be conceived. Thirdly, there was little in the way of an immediate support network in place for the mother and any child which might be conceived. Fourthly, any child would be without a father for an important part of its childhood years. Fifthly, in light of the violence of the first applicant’s crime, there would be legitimate public concern that the punitive and deterrent elements of his sentence of imprisonment were being circumvented if he were allowed to father a child by artificial insemination.
9. The applicants sought leave to apply for judicial review of the Secretary of State’s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible in December 2003 on the basis that they had failed to exhaust domestic remedies (App. No. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal.
10. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v Secretary of State for the Home Department ([2001] 3 WLR 533). He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips in the Mellor case (see “Relevant Domestic Law and Practice” below) and commented:
“... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2...
Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State’s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...”
He then noted that on occasions the Secretary of State had “dis-applied the policy” when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances.
11. Auld LJ then applied the policy to the present case:
“To the extent that [the applicants have] suggested that he Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State’s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.”
12. The other judges also relied on the judgment in Mellor. Mance LJ said the following:
“The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v the United Kingdom App No. 8186/78 at paragraphs 61 to 62, also recognised the potential relevance of more general considerations of public interest.”
13. The Secretary of State is empowered to make rules for the management of prisons by Section 47 of the Prison Act, 1952, which, in so far as material, provides as follows:
“The Secretary of State may make rules for the regulation and management of prisons... and for the classification, treatment, employment, discipline and control of persons required to be detained therein...”
14. The relevant rules are the Prison Rules 1999 (SI 1999 No 728). Rule 4 provides as follows:
“Outside Contacts
(1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.
(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”
15. The long standing policy of the prison service, set out above in the letter of Secretary of State of 28 May 2003 was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years’ imprisonment to serve. His wife was 25 of age. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case.
16. They challenged the policy rather than its application to their case arguing that it was an unjustified interference with their Article 8 rights. They distinguished that policy from the policy on conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The Government argued that the policy was justified: (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single parent families.
17. The Court of Appeal considered, while the first reason did no more than restate the policy, the second and third reasons were legitimate justifications for the policy. In giving judgment for the court, Lord Phillips said (at paragraphs 44 ff):
“[The Secretary of State] submitted that this passage demonstrated that public perception was a legitimate element of penal policy. I agree. Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system.
Furthermore, [the applicants’] submissions did not recognise the significance of the word “justified” in the phrase “justified public concern”. A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern...
... [the applicants] submitted that [the disadvantage of single parent families] was not a material consideration when formulating prison policy... Again, I do not agree. By imprisoning the husband the State creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.
For those reasons [the applicants have] failed to make out his case that the Secretary of State’s policy only to facilitate artificial insemination in exceptional circumstances is irrational. [The applicants] accepted that there were in this case no exceptional circumstances, and [they were] right to do so.”
18. For those reasons the court concluded that the policy was not a disproportionate interference with the applicants’ rights under Article 8. Lord Phillips remarked that, for any applicant claiming exceptional circumstances, the normal “starting point” should be the need to demonstrate that, if facilities for artificial insemination were not provided, conception would not just be delayed but prevented altogether.
NON_VIOLATED_ARTICLES: 12
8


ITEMID: 001-58030
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF VAN MECHELEN AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-d;Just satisfaction reserved;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 9. The police received information to the effect that the applicants were the perpetrators of several robberies, and that they operated from two residential caravan sites. It was decided to detail a police observation team (observatieteam, "OT") to keep these caravan sites under observation as from 25 January 1989.
10. On 26 January 1989 at around 5.15 p.m. three motor cars, a Mercedes estate car, a BMW and a Lancia, were seen to leave one of the two caravan sites shortly after each other. Their registration numbers were noted.
11. On 26 January 1989 at around 6 p.m. the post office of the town of Oirschot was robbed. The window of the post office was broken down by backing a Mercedes estate car equipped with a steel girder into it. One of the robbers, wearing a black balaclava helmet and armed with a pistol, forced the staff to surrender some 70,000 Netherlands guilders. The robbers then set the Mercedes car alight and made off in a BMW.
Police cars alerted by radio followed the BMW. Police officers saw the BMW drive onto a sand track leading into a nearby forest. Later they saw a column of smoke coming out of the forest. The BMW was subsequently found there, burnt out.
Four police officers in a police car saw a red car (later found to be a Lancia) leave the forest via the same sand track used by the BMW and gave chase. In the course of the chase the boot of the car was opened from the inside and men squatting in the back opened fire at the pursuing police car with a pistol and a sub-machine gun. A car containing civilians was hit by a stray bullet but its occupants were not hurt.
The Lancia made off at high speed and entered a side road. When the police car caught up with it the Lancia was stationary. A man standing in the road fired at the police car with a sub-machine gun. The police car was hit and its occupants injured, after which the gunman and the persons in the Lancia made their escape.
12. All three cars - the Mercedes, the BMW and the Lancia - were later identified as the cars which had been seen leaving the caravan site (see paragraph 10 above).
13. The applicants and one other man, called Amandus Pruijmboom (not to be confused with the applicant Antonius Amandus Pruijmboom), were charged with attempted murder - or, in the alternative, attempted manslaughter - and robbery with the threat of violence and summoned to appear for trial before the ‘s-Hertogenbosch Regional Court (arrondissementsrechtbank) on 19 May 1989.
Evidence proffered by the prosecution included statements made to a named police officer by police officers identified only by a number.
14. In interlocutory judgments of 2 June 1989 the Regional Court decided that it was necessary to establish whether the police officers identified only by numbers had investigative competence (opsporingsbevoegdheid). To that end it referred the case to the investigating judge (rechter-commissaris) and adjourned the case until 20 July.
The investigating judge established that the police officers in question did in fact have investigative competence.
Counsel for Mr Willem Venerius argued, inter alia, that the police officers identified only by a number were anonymous witnesses, so that their statements did not constitute sufficient proof, in the absence of corroborating evidence, to support a conviction. The Regional Court rejected this argument, holding that since the police officers in question had investigative competence, the evidential value of their statements was not affected by their anonymity.
The Regional Court convicted the accused of attempted manslaughter and robbery with the threat of violence. The evidence identifying the applicants as perpetrators of these crimes was constituted by the statements made before the trial by the anonymous police officers, none of whom gave evidence before either the Regional Court or the investigating judge.
All five accused were sentenced to ten years’ imprisonment.
15. The five convicted men appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof).
At the hearing before that court on 2 May 1990 the applicants’ lawyers made requests for several named and anonymous witnesses to be heard. The Court of Appeal thereupon referred the case to the investigating judge, firstly because it considered it necessary to find out what objections the police officers themselves had against the lifting of their anonymity and secondly because the number of persons to be heard was such that it could not conveniently be done in open court. The persons to be heard were four named police officers, eleven anonymous police officers (identified to the defence and the court only by a number) and two civilians.
16. The named and anonymous witnesses were questioned on 24 and 27 September and on 5-8 and 13 November 1990.
All of the anonymous witnesses were - or had at the relevant time been - police officers invested with investigative competence.
The procedure followed for questioning them was that the investigating judge, the witness and a registrar were together in one room, and the defendants, their lawyers and the advocate-general in another. The defendants, the lawyers and the advocate-general could hear all the questions asked to the witnesses and their replies through a sound link. The statements of the witnesses were repeated by the investigating judge to the registrar, who took them down.
17. On 24 September 1990 witness 001 was interrogated. He was a member of an observation team. It was his wish and that of his superiors that he remain anonymous in the interests of the service; in addition, his family had been threatened in the past. Witness 001 confirmed a statement which he had made earlier, to the effect that when confronted with Mr van Mechelen through a two-way mirror he had identified him as the man who had sat next to the driver of the Lancia.
Witness BRZ03 was interrogated the same day. His wish to remain anonymous was primarily inspired by the wish to ensure the safety of his family and friends; he had been threatened in the past. At the time of the crimes in question he had been a member of an arresting team. He had been a passenger in the front seat of the police car used to pursue the Lancia and had been badly wounded in the shooting.
Witness 006 was a member of an observation team. He wished to remain anonymous to ensure the safety of his family and friends and his colleagues; he knew of cases in which a police officer’s family had been threatened. He confirmed the correctness of a report which he had drawn up together with witness 005.
Witness BRZ09 had been a member of an arresting team at the relevant time. He wished to remain anonymous in the interests of the service but also for the safety of his family. He confirmed an earlier report to the effect that he had been a back-seat passenger in the police car which had pursued the Lancia, and had been fired at.
18. On 27 September 1990 the investigating judge drew up an official report of his findings with regard to the first four anonymous witnesses. He considered them all reliable, although they had shown great caution when asked questions which might affect their anonymity. He also considered their reasons for wishing to remain anonymous well-founded.
19. Also on 27 September 1990 the investigating judge interrogated, in addition to two named police officers, the named witness Mr Engelen. Mr Engelen was a civilian bystander who stated that he had seen a man fire a gun. He had later identified Mr van Mechelen as that man when confronted with him through a two-way mirror.
20. On 3 October 1990 the Court of Appeal resumed the hearing. The lawyer defending Mr Willem Venerius asked for one anonymous police officer - BRZ03 - to be heard in open court. The Court of Appeal however decided not to continue its own examination of the case until all witnesses had been questioned by the investigating judge.
21. On 5 November the investigating judge resumed the interrogation of the witnesses.
Witness BRZ10 stated that he was a member of an arresting team. He had been the driver of the police car used in the attempt to pursue the Lancia and force it to stop. He had recognised Mr Johan Venerius as the driver of the Lancia.
Witness 004 stated that he had been a member of an observation team at the relevant time. He wished to remain anonymous because he feared for the safety of his family. In addition, he was involved in the work of the criminal intelligence department (Criminele Inlichtingen Dienst, "CID"). His superiors wanted him to remain anonymous for that reason. He too had recognised Mr Johan Venerius as the driver of the Lancia.
Witness 005 was also a member of an observation team. He had been a passenger in a police car which had passed the Lancia and had recognised Mr Johan Venerius as the driver.
22. Witness 003 had been a member of an observation team at the relevant time. He wished to remain anonymous in the interests of the service as well as for the safety of his family. He had been the driver of an unmarked police car and had seen the BMW and the Lancia drive past but had not recognised any of their occupants.
Witness 46204 had been a member of an arresting unit. He wished to remain anonymous in the interests of the service as well as for the safety of his family. He had seen the BMW both before and after the robbery in Oirschot. The driver on both occasions had been the applicant Pruijmboom, whom he had later recognised at a confrontation.
Witness 46203 had been a member of the same arresting unit. He was "99% certain" that he had seen Mr van Mechelen enter the caravan site about an hour before the three cars left from there.
Witness BRZ08 had left the police force but at the relevant time had been a member of an arresting team. He wished to remain anonymous for the safety of his family, three of his colleagues having been threatened in the past. He had been the driver of the police car which had pursued the Lancia and had been fired at. He had sustained injuries, as had the other police officers in the car.
23. The various named police officers provided background information relating to the investigation and the procedures followed but did not positively identify any of the applicants as the perpetrators. Some of them stated that they knew of colleagues who had been threatened in other cases but none of them had yet been threatened in this case.
24. On 19 November 1990 the investigating judge drew up a report of his findings concerning the questioning of the witnesses. This document reads as follows:
"REGIONAL COURT OF ‘s-HERTOGENBOSCH
Investigating judge
with responsibility
for criminal cases
_________________
OFFICIAL RECORD OF FINDINGS
The cases against:
Willem Venerius,
Johan Venerius,
Hendrik van Mechelen,
Amandus Pruijmboom, and
Antonius Amandus Pruijmboom
were referred by the Court of Appeal at ‘s-Hertogenbosch to myself, A.H.L. Roosmale Nepveu, investigating judge with responsibility for criminal cases at the Regional Court of ‘s-Hertogenbosch. I, investigating judge, wish to place the following on record in connection with the investigation conducted by myself with the assistance of the registrar.
The Court of Appeal referred the cases against the said accused persons to me in order for a total of twenty-one witnesses to be heard. Eleven of them are designated only by a number in the documents.
I, investigating judge, questioned twenty witnesses in the presence of the registrar. I also, together with the registrar, drew up a record of the hearing for each accused separately. The statements of the witnesses are however similar in all cases, since the hearings took place simultaneously in all five cases.
Thus in the statements the names of fellow accused and their counsel appear as ‘persons asking questions’.
The witnesses indicated were questioned on the dates given below:
24 September 1990 001
BRZ03
006
BRZ09
27 September 1990 F.P.W. Engelen
A.P.J.M. de Vet
G.J.M. Jansen
5 November 1990 BRZ10
004
005
6 November 1990 003
46204
46203
7 November 1990 BRZ08
H.P.C. Koene (adjourned)
8 November 1990 W.P.A. Meijers
P.F.M. Aarts
H.P.C. Koene (resumed)
13 November 1990 H.B. Corbijn
P.J.M. Swartjes
G.W.A.M. Ligtvoet.
...
The accused, their counsel and the advocate-general were always invited to the hearings. Whenever they appeared they were also given an opportunity to ask questions. They did so extensively. The hearings took up a great deal of time. The shortest hearing of an unidentified witness lasted nearly two hours (46203); the longest about five hours (BRZ08). The hearings of witnesses Jansen and Koene each lasted a good five hours. This information may perhaps be of use in assessing the suggestion that was made on 3 October 1990 to the Court of Appeal, that all the witnesses should be heard by the Court in a single day.
Where a witness did not answer a question, this is also indicated in the text of his statement.
The statements were recorded in very great detail and in fact cover all the matters raised - also by the defence -, in a factual and where necessary even literal transcript. Once the text existed in draft form, those present were invariably given the opportunity to make comments, request clarification and put further questions. Where necessary the statement was then amended, clarified and expanded - always, of course, within the limits of what the witness really wanted to say. And even if ... there are drawbacks to the manner in which the hearings of the unidentified witnesses were carried out, it is my belief that the advocate-general and the defence had sufficient opportunity to question the witnesses thoroughly at the hearings. Those present really did have the opportunity for hours on each occasion. If they so desired, those present had several chances to put questions to a witness. Unlike what normally happens at court hearings, everyone was able to follow the entire transcription of the statements and then still obtain clarifications and additions. Questions were barred only on substantive grounds (see the records for details), not by reason of the time taken for the interrogations.
In the light of recent case-law in the matter of statements by unidentified witnesses, I think it is right for me to make known my findings regarding the statements of the unidentified witnesses heard in this case. I, the investigating judge, and the registrar, are the only persons who attended all the hearings from start to finish.
I stand by my official record of findings dated 27 September 1990 where the witnesses referred to in it are concerned [see paragraph 18 above]. I would now add the following:
All the ‘numbered witnesses’ made their identities known to me. It was clear to me that all eleven were different persons.
Their statements indicated such a knowledge of the facts that I am entirely convinced that I was talking to the witnesses referred to by numbers in the documents. I have no reason to doubt their reliability. Nor at any time did I have the impression that I was being lied to. On the contrary, each and every one of them was very much to the point. The persons facing me wore serious expressions. The unidentified witnesses were clearly quite aware of the serious nature of the oath or pledge they had given and of the very great interests at stake, especially for the accused persons involved. The calm, quiet manner in which, for example, BRZ03 and BRZ08 related their experiences in Leende (in which connection I expressly leave it to the Court of Appeal to decide whether these accused persons were the perpetrators) was impressive and certainly gave no indication of malice towards the accused. All the witnesses manifested a certain degree of wariness, which, in view of their desire to remain anonymous and the sometimes rather forceful manner of questioning on the part of [two of the defence lawyers] in particular, did not bother me.
If all the statements are laid side by side, some differences of detail can be observed. I do not think that these differences are such as to warrant the conclusion that the witnesses may be unreliable. Rather, in so far as I have observed any differences, I would describe them rather as the ‘extraneous noise’ which in my experience practically always affects statements by witnesses. Of course it is ultimately for the Court of Appeal to decide on the value of the statements.
The reasons for the witnesses wishing to remain anonymous in the instant case are given in the records of the hearings. It seems to me that I am now affording the Court an opportunity to reflect on the value of those arguments. I think that the text of the recent judgments of the Supreme Court of the Netherlands also compels me, as the judge conducting the questioning, to state my opinion on the reasons given by the witnesses for remaining anonymous. I am also concerned to inform the Court of Appeal that I am aware that the Court is called to take the final decision in these matters. I consider the reasons behind the desire to remain anonymous to be such as fully to justify anonymity. I have had regard in this connection to the nature of these cases and to the nature of the activities of the anonymous witnesses concerned.
I take the liberty of observing - while expressly leaving aside the question whether these accused persons are the perpetrators - that the instant case tellingly illustrates the fact that there are evidently people for whom human lives do not count when it comes to evading responsibility for exceptionally serious crimes which they may have committed.
I can understand that there are major objections to revealing the names and appearance of members of arresting teams, observation teams and arresting units to the public at large. By that I mean that the obvious interest of society in having very serious crimes solved should weigh in the balance. At the same time, I am of the opinion that the conduct of the unidentified witnesses (who are no longer anonymous to myself) who have appeared in this case is the subject of proper judicial supervision. It is not apparent to me as investigating judge that the ‘numbered witnesses’ acted carelessly. Rather, in my opinion, the opposite was true.
During the last hearing of the witness Koene, [two of the defence lawyers] asked me to record that, in their view, the witness answered not only the questions of the defence but also questions by the investigating judge in a ponderous, deliberate manner that was hard to follow. I have been asked to endorse that opinion. I decline to do so. The witness Koene was wary in his answers, which I find understandable in view of the barrage of questions - which were not always formulated equally clearly. It must not be forgotten that a witness who is being questioned on oath about a multitude of events that occurred some years previously should not be reproached for failing, in his answers to those questions, to keep up with the tempo of the rather forceful questioning to which [the two lawyers] in particular subjected him on 8 November 1990, together and in tandem. Furthermore, I can imagine that a witness may be somewhat annoyed if he is repeatedly asked the same question, especially if he has already replied under oath on the day before. The witness Koene kept a cool head, and in so doing demonstrated a certain quality. As far as I can judge at the present time, I regard him as a reliable witness. Nor do I think that he can be regarded as a reluctant witness, if only by reason of his extensive statements in the records of 7 November and 8 November 1990.
The witness Koene informed me on 15 November 1990 that on 26 January 1989 the persons numbered BRZ05 and BRZ14 were in the car with BRZ10. He gave me this information following a request by the defence.
I think I ought not to omit to mention, with regard to the witness Engelen, that throughout the hours of insistent questioning he certainly did not strike me as untruthful. In my judgment, Mr Engelen is a simple, friendly and very obliging man. Perhaps I can illustrate the impression I had of him by recording that, after the interrogation had gone on for a considerable time, I thought it opportune to ask the unusual question whether the witness could read. I do not exclude the possibility that he is not entirely aware of the great importance of an exact and consistent account of what he saw.
In the second paragraph on the first page of the statement by the witness Engelen, I suggested to him that the confrontation had occurred on 15 February 1989. The date should be 9 March 1989. [One of the defence lawyers] pointed this out to me later and I think he is right.
...
(signed) A.H.L. Roosmale Nepveu
19 November 1990"
25. The hearing before the Court of Appeal was resumed on 16, 17 and 18 January 1991.
On 16 January a named witness, Mr Engelen, was heard in open court. He had stated to the police in March 1989, and to the investigating judge in September 1990, that he recognised the applicant Van Mechelen as the man who had fired a sub-machine gun at a police car in the village of Leende. Before the Court of Appeal he stated that on the latter occasion he had been allowed to re-read his earlier statement, but that he was no longer sure whether he could still recognise either the weapon or the man who had fired it. He also said that he had not been threatened in connection with the case.
On 18 January the lawyer acting for the applicant Van Mechelen brought forward two persons chosen for their excellent eyesight (both having participated in the Olympic games as members of the Netherlands rifle-shooting team), and who had participated in a reconstruction of the shooting in light and weather conditions similar to those obtaining at the time of the crime. These witnesses both stated that they had been unable to distinguish the features of the persons acting the parts of the perpetrators at the distances at which it had been alleged that the accused had been seen by Mr Engelen. A video recording had been made of the reconstruction, in the presence of a notary who had kept the original videotape under seal.
The hearing was again resumed on 21 January 1991, and the video of the reconstruction was shown.
26. The Court of Appeal convicted all four applicants in four separate but similar judgments on 4 February 1991.
All four applicants were found guilty of attempted murder and robbery with the threat of violence and sentenced to fourteen years’ imprisonment. The fifth suspect, Mr Amandus Pruijmboom, was acquitted.
The Court of Appeal’s judgment in the case of the applicant Van Mechelen contained the following:
"Considering with regard to the statements, used in evidence, of the persons who remained anonymous, that these statements were taken down by a judge, more particularly the investigating judge responsible for criminal cases within the jurisdiction of the ‘s-Hertogenbosch Regional Court, who himself knows the identity of the witnesses, who has heard these witnesses on oath, who in his official record of his findings ... has given his reasoned opinion of the reliability of the witnesses and their reasons for wishing to remain anonymous, and who, moreover, has offered the accused and the defence the opportunity to question these witnesses, of which opportunity, as appears from the official records of the interrogations, extensive use has been made.
The objections of the witnesses heard by the investigating judge and identified only by a number to remain anonymous (sic) are sufficient reason for the Court of Appeal to continue this anonymity. The Court of Appeal refuses the request made by counsel at the hearing to have these witnesses heard in open court, even if this request should be understood to imply that the witnesses might be disguised, since the possibility that the witnesses may be recognised in open court cannot be excluded.
Of the arguments for continuing the anonymity of the witnesses, the Court of Appeal considers particularly persuasive the personal safety of these witnesses and their families, and it makes no difference that these witnesses have not yet been threatened. As already noted in the Court of Appeal’s interlocutory decision of 3 October 1990, the present case concerns extremely serious crimes, the [attempted murder] having been committed so as to evade recognition and arrest by the police, the perpetrators having been prepared to sacrifice a number of human lives. In these circumstances, the risk run by the witnesses identified only by a number and their families if their anonymity is lifted or insufficiently guaranteed is decisive. In so far as anonymous witnesses have refused to answer questions this was done in order not to disclose methods of investigation or to maintain the anonymity of other investigating officers involved in the case."
The Court of Appeal considered the statements of the anonymous police officers to be corroborated by each other and by the evidence available from non-anonymous sources. This other evidence included a transcript of a telephone conversation between the wife of Mr Johan Venerius and her mother intercepted two days after the date of the crime, from which it appeared that Mr Johan Venerius had not returned home in the meanwhile and his whereabouts were unknown, as well as forensic reports relating to the cars and the weapons used for the crime and the above-mentioned statements of the named civilians and police officers. However, the Court of Appeal did not rely on the statements of Mr Engelen.
27. The applicants filed appeals on points of law (cassatie) to the Supreme Court (Hoge Raad).
In accordance with the advisory opinion of the advocate-general, the Supreme Court dismissed the appeals in a series of judgments of 9 June 1992. It held that in the circumstances the evidence given by the unnamed police officers was admissible, since on the one hand their evidence was sufficiently corroborated by the evidence obtained from named sources and on the other the procedure followed provided sufficient compensation for the handicaps under which the defence had laboured.
The Supreme Court’s judgments concerning Mr Willem Venerius and Mr van Mechelen were reported in Nederlandse Jurisprudentie (Netherlands Law Reports, "NJ") 1992, nos. 772 and 773 respectively.
28. It has not been alleged that any named or anonymous witnesses were at any time threatened by or on behalf of the applicants.
29. Except for the differences noted below (see paragraphs 39 and following), relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court’s Kostovski v. the Netherlands judgment of 20 November 1989 (Series A no. 166). Reference is therefore made to that judgment, especially pp. 13-17, paras. 22-32.
30. The finding that an accused has committed the act with which he is charged must be based on "legal means of evidence" (wettige bewijsmiddelen - Article 338 of the Code of Criminal Procedure (Wetboek van Strafvordering - CCP)).
"Legal means of evidence" include inter alia statements of witnesses relating to facts or circumstances which they themselves have witnessed (Articles 339 para. 1 (3) and 342 para. 1 CCP) and written documents (Article 339 para. 1 (5) and 344 para. 1 CCP).
Such evidence must normally be corroborated by other evidence (Articles 342 para. 2, 344 para. 1 (5) CCP). However, an official record made in the proper form by a police officer invested with investigative competence can be admitted without corroboration (Article 344 para. 2 CCP).
31. The public prosecutor has the power to call witnesses and experts to the hearing (Article 260 CCP). In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he can - according to Article 263 - submit a request to the public prosecutor no later than three days before the court hearing to summon a witness before the court. As a rule, the public prosecutor should summon the witness, but - according to Article 263 para. 4 - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ("Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord"). He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article 280 para. 3 (see paragraph 33 below) to renew the request to the trial court at the hearing.
32. At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called, which is then read out by the registrar (griffier) (Article 280 para. 2).
33. If the public prosecutor has failed to summon a witness at the request of the accused, or declined to do so, the defence may ask the court to have that witness summoned (Article 280 para. 3). The court so orders, unless it finds that the non-appearance of this witness cannot reasonably be considered prejudicial to the rights of the defence ("De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad" - Article 280 para. 4).
34. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with Article 280 falls under Article 315 CCP (see paragraph 35 below). It appears from the judgment of 23 December 1986 by the Supreme Court that the trial court needs only accede to a request of this nature if it finds it necessary to do so.
35. Under Article 315 CCP the trial court has the power to order of its own accord the production of evidence, including the summoning of witnesses whom it has not yet heard.
36. If it finds that there is occasion to do so, the trial court may order that a witness be brought to its hearing by the police (Articles 282 para. 1 and 315 CCP).
37. If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 CCP).
38. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 CCP). The defence enjoys the same rights as it does at first instance (Article 415 CCP).
39. In its judgment of 9 January 1990, NJ 1990, no. 409, the Supreme Court held that there was no general rule in Netherlands law to the effect that statements by anonymous police officers could only be admitted if the trial court had first established the existence of clear indications that the officers were under threat.
40. In its judgment of 2 July 1990, NJ 1990, no. 692, the Supreme Court considered that it had to be assumed in light of the European Court’s Kostovski judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case-law until then. It defined these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, and (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous, and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. On the other hand, according to the same judgment, a written document containing the statement of an anonymous witness may be used in evidence if (a) the defence has not at any stage of the proceedings asked to be allowed to question the witness concerned, and (b) the conviction is based to a significant extent on other evidence not derived from anonymous sources, and (c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection.
41. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the "protection of witnesses". It entered into force on 1 February 1994. The additions include the following.
Article 226a now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself.
An appeal against the decision of the investigating judge lies to the trial court (Article 226b).
The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecuting authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d).
Article 264 now lays down that the prosecution may refuse to summon a threatened witness.
If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 para. 5).
The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted (Article 342 para. 2 (b)).
A new paragraph has been added to Article 344 to the effect that a written document containing a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned.
42. The following passages are taken from the explanatory memorandum of the bill which became the Act of 11 November 1993:
"The Bill is based on the assumption that only threatened witnesses should be in a position to claim complete anonymity. I realise that the usefulness of certain police officers (e.g. undercover agents posing as drugs purchasers, members of an arresting team or an observation team) will be reduced thereby. However, the public interest in investigating serious crime cannot alone justify guaranteeing complete anonymity. This interest can in my opinion be sufficiently protected if the law creates the possibility to refrain from asking the police officer for certain identifying information and by granting the interrogating judge the power to take all measures which are reasonably required to prevent the disclosure of such identifying information, such as making the police officer unrecognisable by the use of make-up or disguise or preventing eye contact between the accused and the police officer." (Explanatory Memorandum, Lower House of Parliament 1991-92, 22 483, no. 3, p. 17).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-72988
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PLANKO v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1968 and lives in Šentrupert.
6. On 12 October 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 13 May 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,064,671 tolars (approximately 8,600 euros) for the injuries sustained.
Between 11 September 1998 and 30 October 2001 the applicant lodged six preliminary written submissions and/or adduced evidence.
Between 19 September 1997 and 8 June 1998 he made three requests that a date be set for a hearing.
Of the three hearings held between 11 September 1998 and 3 October 2001 none was adjourned at the request of the applicant.
During the proceedings the court appointed two medical experts. The court also sought an additional opinion from the appointed experts.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 25 October 2001.
8. On 6 November 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 12 February 2003 the court dismissed the applicant’s appeal and upheld the ZT’s appeal in part.
The judgment was served on the applicant on 23 April 2003.
9. On 24 April 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 7 October 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 9 November 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57795
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF THORGEIR THORGEIRSON v. ICELAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 7. Mr Thorgeir Thorgeirson is an Icelandic citizen. He is a writer and resides in Reykjavik, Iceland.
8. From 1979 to 1983 a number of incidents occurred in Iceland involving allegations of police brutality, about ten of which were reported to the police. The last such complaint was made in the autumn of 1983 by a journalist, Mr Skafti Jónsson, and it led to the prosecution of three members of the Reykjavik police, of whom two were acquitted and one convicted. His case received extensive coverage by the press and gave rise to considerable discussion on the relations between the public and the police. This caused the applicant to publish two articles on police brutality in the daily newspaper Morgunbladid on 7 and 20 December 1983 respectively.
9. The first article read as follows (translation):
"LET US CONSIDER NOW!
An open letter to the Minister of Justice Jón Helgason
Honourable Minister of Justice:
(1) Recently a problem which has been bothering - if not obsessing - me for several years has suddenly been highlighted by the press. One of the journalists of your very own progressive party-newspaper - Tíminn [The Time] - had a painful experience and returned with some injuries from the Reykjavik night-life jungle. Often the perils of the jungle and other such inhospitable regions can help us to visualise the hardships that missionaries such as Stanley and Livingstone had to endure, even if they were preaching the worth of God’s own Kingdom rather than the co-operative Utopia.
(2) In this case trouble befell one of your political missionaries, the journalist Skafti, in the town’s night-life. The photographs of his facial injuries, spread across four newspaper columns, have, of course, shocked us.
(3) We do not want to accept that our policemen have damaged this journalist’s handsome face in this way. All he was doing, he tells us, was innocently looking for his overcoat when the beasts in uniform in the aforementioned jungle attacked him.
(4) In my opinion Skafti’s case is of little importance. But as it has received a lot of attention and been widely discussed, I would like to use the opportunity to point out to you that the real problem is in fact bigger and much more horrifying.
(5) Skafti’s case, brought to our attention by the press, is but the tip of the iceberg. Beneath it, in the dark sea of silence, lurks a problem nine times bigger.
(6) That is the part I would like to bring to your attention, because you are the Minister of Justice and thus in command of those wild beasts in uniform that creep around, silently or not, in the jungle of our town’s night-life.
(7) I am certainly not underestimating the pain and hardship that this young man has unnecessarily had to endure. However, Skafti is obviously going to recover. The blue spots on his face will turn violet, then brown and in time they will eventually disappear. He will go back to working for [The Time] and his case will be buried under the mounds of day to day scandals which will pile up like snow after a heavy snowstorm.
That is if we do not use this opportunity to look at the problem in its entirety.
(8) Several years ago I had to spend several weeks on a ward in our local hospital. In a room leading off the same corridor was a man in his twenties lying in his bed. He was a promising and charming young person, but he was paralysed to the extent that he could not move any part of his body, other than his eyes. He was able to read with the aid of special machinery and a helping hand to turn the pages for him.
I was told that his chance of recovery was minimal.
(9) The young man’s room-mates told me that his injuries had been inflicted by bouncers of a restaurant and some policemen. At first I could not believe this, so I enquired among the hospital staff and - Yes, they were right; we had there a victim of the Reykjavik night-squad.
(10) The image of this paralysed youngster somehow followed me out of the hospital and I couldn’t help talking about his case. I then found out that most people had various stories of persons who had had a similar or even worse experiences with the beasts in uniform. Individuals reduced to a mental age of a new-born child as a result of strangle-holds that policemen and bouncers learn and use with brutal spontaneity instead of handling people with prudence and care. There are so many such stories, identical in substance, that you can hardly dismiss them merely as lies any more. Another thing that goes with those stories as inevitably as brutality follows stupidity is the statement that suing a policeman in such a case would be hopeless. The investigation would be undertaken by another department of the police and there be carried out by an élite group who see it as their duty to wash all policemen clean of any accusations made against them.
(11) The victims of the police brutes remain forgotten, without hope, as the years pass without their causes ever being seriously discussed.
(12) Now this might be one of those rare occasions. It is the reason for this letter of mine.
(13) I have little doubt that there is something essentially wrong in a system where the people in charge seem to disregard all sense of justice and misinterpret their duties by allowing brutes and sadists to act out their perversions - no matter who is the victim. In my opinion the Reykjavik Chief of Police is being stubborn in refusing to relieve the accused policemen from their duties while the ‘Jónsson case’ is being investigated. Moreover, he seems to lose little of his self-confidence, even though he is up against one of your own partisans in this case. But we shall see.
(14) Even if Mr Jónsson wins his case this will be an exception and will change nothing. Other victims of this brutality will continue to pile up in silence as before.
(15) My opinion is that the real problem lies with a system where policemen investigate other policemen’s violations of correct professional conduct. This opinion I share with other much more competent persons - who are obviously hesitant in pronouncing their opinion on this matter fearing the reprisals and beatings that might follow.
The matter is as serious as that.
(16) Two of your predecessors in the office of Minister of Justice have received letters from me regarding these problems. Neither of them had the courtesy to answer.
(17) Recently I have been looking at pictures of you in the paper and I was struck by your facial appearance of fairness and youthfulness mixed with confidence. This indeed is the very kind of facial expression that could at any time easily seep into your character even if it was originally only meant for the photographer.
Therefore I am writing to you as well.
My proposal is the same as it was before:
(18) Stop putting these cases of police brutality into this perfunctory, useless automatic washing-machine. As long as policemen are allowed to clean one another you will never even have the possibility to consider the urgent things such as giving IQ and character tests which must be passed before they are taught how to exercise fatal tricks on people, to make them responsible in cases where they have momentarily lost control of their temper - all of which is needed in order to have a competent police force worthy of the power given to them.
But how can we get rid of the old system?
(19) You have to form a committee of trustworthy people to investigate the rumours, gradually becoming public opinion, that there is more and more brutality within the Reykjavik police force and being hushed up in an unnatural manner. Such a committee could ask victims of police brutality to come forward with their statements for eventual verification. Hopefully the committee will find that it is only a tiny minority of policemen who are responsible. Those individuals should be advised to look for other jobs.
(20) I have the gut feeling that our Police Problem could be compared with the so-called Youth Problem in the sense that comparatively few individuals are responsible for this negative public opinion of them. Furthermore, those individuals could not be said to be typical of either group - nor the most intelligent.
(21) I have seen the policemen in this town perform many a good deed and therein I have met many an exemplary fellow. We cannot do without them. But I feel I owe it to the young man I met at the local hospital to muster my courage and put forward this proposal: let us try cleaning up this mess so that those who, ready to risk their lives, embark on the adventure of the jungle of the Reykjavik night-life in the future can at least be assured that a policeman in uniform is not among the perils therein.
There are enough other wild beasts.
(22) In court you sometimes put forward an alternative claim in case your main request is not accepted. Should you, Jón Helgason, fail to ensure that this neutral investigation is carried out, I call upon able journalists (Skafti for example) to start this investigation and to publish the results in a book that would very probably become a bestseller. I would at any time be prepared to participate in this.
With all my respect and best wishes,
Yours sincerely,
Thorgeir Thorgeirson"
10. Extracts from the second article read as follows:
"STRIKE WHILE THE FLY IS SITTING ON MY NOSE ...
(1) Thorgeir Thorgeirson’s statement on the policeman Einar Bjarnason’s behaviour in a television programme on December the 13th, in the evening.
...
(2) Last Tuesday, December the 13th, there was a programme about the police problem on television. Among the participants were two police intellectuals who were given free rein, according to the opinion of many spectators. The only spectator whom I heard excusing Bjarki and Einar argued that there had only been two of them and the third one was regrettably missing from their camp, that is to say the supervisor.
This might well be true.
(3) Towards the end of the programme Einar, who happens to be the Chairman of the Reykjavik Police Association, organised an amusing occasion: after having consulted Bjarki with much paper crackling and whispering, he started reading from a typed document containing filth about me, the undersigned, a liar and unreliable person (according to this document which the police somehow had managed to have signed by a person who had nothing to do with it).
(4) Einar could easily have got his message across without breaking the law on radio-broadcasting and thus risking both his honour and his job. Many spectators were astounded by the man’s behaviour.
Not surprisingly.
(5) This venture can hardly be explained merely by loss of control, so I feel forced to add another article to what I had thought to be my final word about the matter a week ago (this is written Thursday the 15th of December and will be delivered to the newspaper on Friday the 16th of December).
I have to mention my experience over the last week.
(6) Last Wednesday, i.e. December the 7th, Morgunbladid published my letter to the highest official in the Icelandic judicial world. My request was that he immediately order a neutral investigation of the police problem instead of allowing the problem to control itself forever. Naturally I did not expect my text to be well received at the local police stations.
(7) A certain misunderstanding is always inevitable. Misconception surrounding this matter has bloomed; my ideas of a writer’s duty are that he should, at least sometimes, be the local conscience, but our police officers seem to be of a totally different opinion, as is only to be expected.
No harm in that.
(8) The morning my letter to Minister Jón Helgason appeared in the newspaper, astonishingly many people phoned me. Among them was Gudmundur Hermannsson who introduced himself as the Chief Police Constable (yfirlögreglubjónn) of Reykjavik. He wanted to know what case I had been writing about in my article. I told him that the subject had been the situation in general; not an isolated case. There were at least several hundred cases concerned. Gudmundur then asked what the paralysed youngster at the local hospital was called, the one I had mentioned. I told him, which was true, that I had probably never heard the boy’s name. Then I asked Gudmundur if the police were currently investigating the matter. His answer was yes. I then pointed out to him that it would be a very bold thing to do in the circumstances: if the police were once again policing themselves. At the same time I refused to say anything else on the telephone, except I told him the date of my hospitalisation. We bade farewell.
...
(9) Time passed until Sunday. The newspapers were full of sobbing statements made by policemen. Sunday’s Morgunbladid published an article by a policeman, Jóhannes Jónsson, who referred to Friday the 9th’s news item which meant that his manuscript would have reached the editorial office on Saturday. This seemed strange to me, knowing that the normal waiting time to have an article published in Morgunbladid is something like four to six days from the date when the manuscript is handed in to the date of publication. That is when ordinary citizens like us are involved. In his article the policeman also reiterated the ‘police-truth’ that the case Thorgeir ‘meant to refer to’ was to be found in a news item on page 13 of Friday’s Morgunbladid.
...
(10) Since then something has occurred, and now I must ask Hall to keep his promise and publish this statement of mine. Even though Einar’s blow towards the end of the television programme last Tuesday proved to be so much askew that it missed and I am not the one hurt by it, I must point out how very typical of the police his behaviour has been.
(11) What is at the root of this so-called Police Problem? Well - many people think that our policemen have already attacked too many a citizen, guilty or innocent. They have been lashing out far too frequently.
(12) The police reactions which have recently appeared in the press show that they are quite familiar with Jon Thoroddsen’s novels - the person who gossips and spreads rumours appears frequently therein. They might also have been reading the Saga of Grettir the Strong whose principle was: you cure ills by pointing to worse.
Anyway that seems to be the line they have taken.
(13) This principle is far too pathetic for a whole police force to follow if we really want people to appreciate their services.
(14) Since Tuesday many people have telephoned me and expressed the opinion that the policemen’s show on television was a disastrous exhibition of national characteristics for our children to see.
(15) - They should have been in uniform, someone said. Their behaviour was so typical of what is gradually becoming the public image of our police force defending itself: bullying, forgery, unlawful actions, superstitions, rashness and ineptitude.
In just those words.
(16) The title of this article is taken from the folk tale that everyone should know, about the couple hunting the fly. I thought of it as I was observing the detective sergeant fighting the bee in his bonnet during the television programme. Should our Minister of Justice not have had time to see the programme, I would like to suggest that he borrow the tape which can still be found at the television station - that is if he wants to see a near-perfect illustration of what the general public are more and more referring to as the Police Problem.
(17) The programme should be an example to us of the necessity of an impartial examination of the problem to prevent the police from repeatedly hurting themselves while "investigating" matters which touch their self- esteem and childish pride.
(18) Let us stop these fights and consider the proposal I put forward in my letter to the Minister of Justice. We could even consider an idea suggested by a witty friend of mine:
(19) - Thorgeir, he said. Wouldn’t it be an idea to get a really good child psychologist to study these police fights?
Hopefully the matter is not all that complicated.
With thanks for the publication.
Thorgeir Thorgeirson"
11. In response to these articles, the Ministry of Justice sent the applicant a letter dated 9 January 1984. It informed him that the problems raised in the articles were being reviewed at various levels and that the matter was on the agenda of the Parliament (Althing) so that the Minister of Justice could report to it in the near future on the studies and proposals which had been made in this field.
12. By letter of 27 December 1983, the Reykjavik Police Association had asked the public prosecutor to investigate the aforementioned allegations. Accordingly, he sent the case to the State Criminal Investigation Police ("SCIP") on 21 May 1984 to examine whether the publications constituted defamation within the meaning of Article 108 of the General Penal Code of 1940 (Law no. 19/1940 - "the Penal Code"). On 18 June the SCIP interrogated the applicant, who was assisted by his lawyer.
13. As a result, on 13 August 1985 the public prosecutor issued a bill of indictment charging the applicant with defamation of unspecified members of the Reykjavik police, contrary to Article 108 of the Penal Code.
14. The following passages of the first article were considered to be defamatory:
"beasts in uniform" (paragraph 9(3) above);
"of those wild beasts in uniform" (paragraph 9(6) above);
"The young man’s room-mates told me that his injuries had been inflicted by bouncers of a restaurant and some policemen. At first I could not believe this, so I enquired among the hospital staff and - Yes, they were right; we had there a victim of the Reykjavik night- squad" (paragraph 9(9) above);
"I then found out that most people had various stories of persons who had had a similar or even worse experiences with the beasts in uniform. Individuals reduced to a mental age of a new-born child as a result of strangle-holds that policemen and bouncers learn and use with brutal spontaneity instead of handling people with prudence and care. There are so many such stories, identical in substance, that you can hardly dismiss them merely as lies any more" (paragraph 9(10) above);
"victims of the police brutes" (paragraph 9(11) above);
"allowing brutes and sadists to act out their perversions" (paragraph 9(13) above).
15. The second article was also considered to contain a defamatory statement:
"Their behaviour was so typical of what is gradually becoming the public image of our police force defending itself: bullying, forgery, unlawful actions, superstitions, rashness and ineptitude" (paragraph 10(15) above).
16. On 9 September 1985 the indictment was served on the applicant; it summoned him to appear at a sitting on the following day of a chamber of the Reykjavik Criminal Court, of which Judge Pétur Gudgeirsson was the only member. At the applicant’s request, the arraignment was adjourned until 17 September.On that day the court held a sitting at which he appeared, accompanied by Mr Tómas Gunnarsson, a Supreme Court lawyer; the public prosecutor was not present. The sitting proceeded as follows:
(a) As required by the second paragraph of Article 77 of the 1974 Code of Criminal Procedure (Law no. 74/1974), the judge informed the defendant that he was being questioned as he was suspected of having committed an offence.
(b) Mr Tómas Gunnarsson was appointed as the applicant’s defence counsel. All the case documents were handed to them.
(c) The applicant was asked by the judge whether he had written the two newspaper articles. He replied that he had, but pointed out that the passages quoted in the indictment, while correct, had been removed from their context.
(d) The judge confronted the applicant with a record of his statement to the SCIP on 18 June 1984 and with his letter to them of 19 June. The applicant confirmed the accuracy of the record and that he had written the letter.
(e) When asked by the judge whether he could substantiate the relevant passages in his articles, the applicant maintained that, in their context in the indictment - on which he had already commented -, he was neither able nor obliged to do so; this was not his literary product, but the product of the accuser.
(f) The applicant asked to be given time in which to acquaint himself with the case documents and to prepare his comments. Another sitting was scheduled for 24 September 1985.
17. On that date the applicant and his counsel appeared before the court, again in the absence of the prosecution. Counsel submitted a motion that Judge Pétur Gudgeirsson should withdraw, on the ground that, in addition to acting as judge, he had represented the prosecution because of its absence at this and the previous sittings.
18. On 25 September 1985 the judge decided as follows:
"This case does not warrant [an adversarial procedure] according to Article 130 of the Code of Criminal Procedure .... [The applicant’s] motion that the judge yield his seat is unsupported by any valid arguments and totally unfounded. The judge is neither obliged nor allowed to yield his seat."
19. On 26 September 1985 the prosecution, pursuant to Article 171 of the Code of Criminal Procedure, refused the applicant’s request for leave to file an appeal by way of a summary procedure against that decision with the Supreme Court. He subsequently asked the Ministry of Justice to appoint an ad hoc prosecutor to consider whether leave should be granted, but this request was refused on 18 October.
20. During the period from 9 October 1985 until 28 April 1986, the Criminal Court held six more sittings at which the applicant and his counsel were present. Documents were submitted, oral statements made and witnesses heard. The public prosecutor appeared at each of these sittings, except that on 17 February 1986, when a video-taped television programme was shown to the court.
21. At a sitting held on 25 October 1985, Judge Pétur Gudgeirsson showed the applicant photographs of a person and asked him whether this was the young man at the local hospital, described in the first article (see paragraph 9(8) above). The applicant replied as follows:
"... it is astounding for an experienced adult to hear another experienced adult ask a question like that. I see and study between one and two hundred persons daily. This would correspond to the entire population of Iceland in about 7 years. Therefore an individual whom I see less than 50 times does not stick in my mind unless there are some special reasons to the contrary. Therefore it is outright absurd and against the nature of the human mind, to ask a person whether he recognises an individual whom he might conceivably have seen seven years ago. I can, however, answer that this is not the young man I had in mind when I wrote the article ‘Let Us Consider Now!’ ..."
22. During a sitting held on 28 April 1986 the parties agreed that further investigation by the court was not required. Accordingly, counsel was given until 3 June 1986 to submit the applicant’s written defence; the prosecutor declared that he would make no further observations.
23. In his defence, which was filed on 3 June 1986, the applicant resuscitated the claim (see paragraphs 17-19 above) that the case should be dismissed or the defendant acquitted on account of the prosecutor’s absence at certain sittings of the trial. With regard to the merits of the case, he claimed, inter alia, the following:
"It is of course the general public that is assaulted by policemen ... . Such an experience is quite memorable and, in the normal course of things, one person tells another. In the process descriptions frequently become exaggerated. As the instances increase in number a public opinion is formed, which naturally is even rougher at the edges than the problem itself. To a significant extent, I used this public opinion as a main feature of my article ‘Let Us Consider Now!’. Public opinion is, of course, in itself a fact and its origins are generally less important and less open to dispute ...
If public opinion turns sour, confidence in policemen is lost, also in policemen who have never as much as hurt a fly. In the autumn of 1983 this loss of confidence had assumed proportions outright dangerous to public welfare. So, when the case of Skafti Jónsson emerged, I became aware of this danger. And my ... article published in Morgunbladid on 7 December 1983 was my reaction to this dangerous situation. By writing the article I consider that I was performing the duty of an honourable writer who studies the spirit of the nation and reports his findings without hiding the truth. This is clear to any person who is willing to read the article in its entirety and puts his mind to really understanding what is written there.
...
But the main purpose of the article, and its conclusion, was to request the Minister to have an investigation carried out as to whether public opinion was correct or incorrect. The article was intended to raise a lawful, urgent question.
Even though my intention was to write an article completely within the limits of the law, I shall not hide the fact that I also tried to phrase the text in such a way as to elicit answers from the parties concerned. The question, of course, was about the truthfulness of the menacing public opinion. If this was incorrect, the police authorities (which alone may possess comprehensive knowledge of these matters) could be expected to react in the composed, confident and calm manner of respectable, honest souls. The Board of the Police Association and the Chief of Police would simply have recommended to the Minister that he initiate at the earliest opportunity an impartial investigation of the matter asked for. Such a reaction would also have calmed the public considerably, as it would have borne witness to good faith."
24. On 16 June 1986, at a sitting attended by the applicant, judgment was delivered by Judge Pétur Gudgeirsson who rejected the claim based on the prosecutor’s absence at certain sittings. As to the merits he stated inter alia:
"According to the evidence submitted, the defendant underwent treatment at the Reykjavik City Hospital from 19 June to 11 July 1978. At the same time a patient named Trausti Ellidason ... was staying there, [completely] paralysed following a physical assault by an acquaintance of his ... . The defendant has been shown photographs of Trausti Ellidason taken at the City Hospital the day after the assault. The defendant has stated that Trausti Ellidason is not the man he describes in his ... article in the Morgunbladid; ...
A video-tape recording of the television programme ‘Varied Opinions’, broadcast on 13 December 1983, has been submitted in evidence.
...
Matters relating to law enforcement, the relations between the public and the police, as well as the ‘Skafti case’ ... were discussed. At the end of the programme Mr Einar Bjarnason, Police Sergeant and Chairman of the Reykjavik Police Association, pointed out that ... the defendant’s article could be shown to be unfounded, as he had ... a statement from the young man of whom the defendant had written in the Morgunbladid. The sergeant read out [the statement]. [It] reads, inter alia ‘What Thorgeir Thorgeirson says about my case in his article is wrong from beginning to end.’ Having investigated the matter, [Mr Bjarnason] and Police Constable Bjarki Elíasson considered that the statement had been made by the person about whom the defendant had written.
As requested by the defendant’s counsel ..., [Mr] Einar Bjarnason was called to testify. He said that the statement had been made by a young disabled man, called Trausti Ellidason, ... that he had obtained information as to the time when the defendant and Trausti Ellidason were in hospital, and that it had been assumed that the defendant had been referring to Trausti Ellidason in his article. That was how they had obtained his statement. Furthermore, the witness stated that, to his knowledge, no Reykjavik policeman had ever caused anyone injuries while on duty such as those described by the defendant in his article of 7 December 1983.
...
The defence ... submitted that in writing the two articles the defendant was performing a writer’s duty to society by drawing attention to people’s physical injuries that have been caused by the police, bringing such matters to light and requesting official action to prevent this. [This alone would get] little attention unless published in the media, and even then it would frequently go unnoticed. Harsh words and stylistic artifices also seemed necessary, as writers so well know. The defendant had been earning his living as a writer for many years, and public authorities had recognised his work, inter alia, by paying him a salary. His work fell within the scope of protection offered by Article 72 of the Constitution, which forbids censorship and other limitations on the freedom of the press.
However the said constitutional rule goes on to provide that a person may be held responsible for printed statements, a principle which has never been disputed in Icelandic law. There are various statutory provisions making it a punishable offence to express certain thoughts or statements in public, such as in print. In addition to Article 108 of the ... Penal Code, reference may be made in this regard to Articles 88, 95, 121, 125, 210, 229, and 233(a)-237 of the same Code. The defendant cannot be deemed to enjoy any privileges or greater freedom of expression than others owing to the fact that he is a writer.
The defendant’s newspaper articles were published in his name, and he has acknowledged having been their author. The defendant was resident in Iceland when the articles were published in the Morgunbladid. Pursuant to Article 15 of the Right of Publications Act 1956 ... he thus incurs both criminal liability and liability for damages on account of the contents ... thereof.
The statements founding the charges in the indictment were said to be directed against unspecified members of the Reykjavik police force.
Notwithstanding that the wording of Article 108 of the ... Penal Code covers offences against specific ... civil servants, [this provision] also covers offences against a defined group of civil servants (see the judgment in the Supreme Court Reports, volume LIV, p. 57).
The words ‘beasts in uniform’ and ‘of those wild beasts in uniform’ are, in the context in which they were published, held to amount to vituperation against and insults to unspecified members of the Reykjavik police force. These statements are punishable according to Article 108 of the ... Penal Code.
In the indictment these statements are considered to be defamatory allegations. Having regard to the third paragraph of Article 118 of the Code of Criminal Procedure ..., the defendant can nevertheless be held responsible for their publication; his actions have been correctly reported and he cannot be held to have been prejudiced in the preparation of his defence case.
The passages ‘The young man’s room-mates ... Reykjavik night-squad’ and ‘Then I found out ... lies any more’ and the words ‘victims of the police brutes’ are, both in themselves and in the context of the ... newspaper article ..., deemed to constitute allegations against unspecified members of the Reykjavik police force of committing many serious acts of physical assault on people who have become disabled as a result. This falls under Article 218 ... of the ... Penal Code, a violation of which may carry the punishment of many years’ imprisonment.
The defendant’s allegations have not been justified, and [due to their] publication ... he is liable to punishment according to Article 108 of the ... Penal Code.
The expressions ‘beasts in uniform’ and ‘police brutes’ must also be deemed to constitute insults to and vituperation against unspecified members of the Reykjavik police force.
These statements are in the indictment said to be defamatory, but ... the defendant can nevertheless be held responsible for them under Article 108 of the ... Penal Code.
The words ‘allowing brutes and sadists to act out their perversions’ are, in the context of the said article, held to constitute vituperations against and insults to unspecified members of the Reykjavik police force.
The indictment states that these are defamatory, but ... the defendant can nevertheless be held responsible for them under Article 108 ...
The passage ‘Their behaviour was so typical of what is gradually becoming the public image of our police force defending itself: bullying, forgery, unlawful actions, superstitions, rashness and ineptitude’ has not been justified. With the exception of the words ‘superstitions, rashness and ineptitude’ the passage accuses unspecified members of the Reykjavik police of forgery and other ... criminal offences. This falls under the provisions of Chapters XIV and XVII of the ... Penal Code, a violation of which may entail a heavy prison sentence.
By making these statements the defendant has become liable to punishment according to Article 108 ...
The words ‘superstitions, rashness and ineptitude’ are, on the other hand, deemed to fall within the limits of permissible criticism, and the defendant is therefore not liable for them ..."
25. The applicant was sentenced to pay a fine of 10,000 Icelandic crowns to the State Treasury or, in default of payment within four weeks from service of the judgment, to eight days’ imprisonment. He was also ordered to pay all the costs of the case, including his counsel’s fees.
26. Both the applicant and the prosecutor appealed to the Supreme Court of Iceland, which heard the case on 22 September 1987. Counsel for the applicant requested that not only the Criminal Court’s judgment but also the entire proceedings, starting with the issue of the indictment, be annulled and that the case be referred back to the Criminal Court for adjudication. In the alternative, he sought his client’s acquittal on all charges. The prosecutor asked for aggravation of the penalty.
27. In its judgment of 20 October 1987, the Supreme Court held inter alia:
"... the request to annul the proceedings is based on the same arguments as those presented to the Criminal Court on 24 September 1985, when the defendant’s lawyer made the following statement:
‘... no representative of the prosecution was present at ... any former sittings in this case ... In view of Articles 20(1) and 36(1)(1) [of the Code of Criminal Procedure], the defendant considers the fact that one person performed both the role of judge and prosecutor in the same case to be unlawful. Having regard to the judge’s lack of initiative in rectifying this state of affairs, [his] replacement ... is required.’
The Criminal Court judge dismissed this request and the public prosecutor refused to authorise an appeal therefrom by way of a summary procedure to the Supreme Court ... . No evidence has been produced during the proceedings in this non-prosecuted case, so classified in accordance with Article 130 of the aforementioned code, to justify a disqualification of the judge or quashing the [conviction] ...
The Criminal Court’s finding of the defendant’s guilt and its application of the penal law ... are upheld as well as the punishment imposed ... . The Criminal Court’s decision on the costs of the case shall remain unaltered."
28. In a dissenting opinion one member of the Court held as follows:
"In a criminal action in respect of defamatory statements it is necessary to clearly define those to whom the statements are considered damaging. This is required both for the defence case and in order to resolve the difficult question of necessary limitations on discussion of matters of public concern.
The indictment states ... that the action is brought ‘on account of defamatory allegations against policemen’ and ... that the allegations in question are directed ‘against unspecified members of the Reykjavik police force’. The indictment must thus be understood as relating to an offence directed against policemen in Reykjavik generally. While agreeing that the statements quoted in the indictment are harsh and have, as such, not been justified, I consider, by reference to the above-mentioned way in which the case has been set out in the indictment, that the conditions for punishment by reason of a violation of Article 108 ..., which is to be construed in the light of the fundamental principle of Icelandic constitutional law relating to freedom of expression in speech and writing, have not been fulfilled.
In view of the above I consider that the defendant should be acquitted and that all costs of the proceedings in the [Criminal] Court as well as in the Supreme Court should be paid by the State Treasury; these are to include the fees of the defendant’s appointed counsel before the Supreme Court."
29. Article 72 of the Constitution of 17 June 1944 of the Republic of Iceland reads:
"Every person has the right to express his thoughts in print. However, he may be held responsible for them in court. Censorship or other limitations on the freedom of the press may never be imposed."
The responsibility referred to in this provision is further defined by statute.
30. An author may, according to Article 15 of the Right of Publication Act 1956 (Law no. 57/1956), be held both criminally and civilly liable for publications made in his own name, if he is domiciled in Iceland at the time of publication or if he is within the jurisdiction of the Icelandic courts when an action is brought against him. If the publication is not made in his name, it is the publisher, editor, seller, distributor or printer who may incur such liability.
31. A defamatory publication constitutes a criminal offence under the Penal Code. Article 108 deals specifically with the defamation of civil servants, in the following terms:
"Whoever vituperates or otherwise insults a civil servant in words or actions or makes defamatory allegations against or about him when he is discharging his duty, or on account of the discharge of his duty, shall be fined, detained or imprisoned for up to three years. An allegation, even if proven, may warrant a fine if made in an impudent manner."
32. In the applicant’s case both the Criminal Court and a majority of the Supreme Court interpreted Article 108 as including defamatory statements directed not only against specific civil servants, but also against a limited group of unspecified civil servants. Precedents to support this interpretation may be found in two Supreme Court judgments: The Public Prosecutor v. Jónas Kristjánsson, 19 January 1983, and The Public Prosecutor v. Agnar Bogason, 31 October 1952.
33. Article 20 of the Code of Criminal Procedure vests authority to prosecute in the Public Prosecutor, who is assisted by the Assistant Public Prosecutor as well as several prosecutors and deputies. He decides how the investigation in criminal cases is to be conducted and supervises it (Article 21).
34. Under Article 115, the Public Prosecutor may initiate criminal proceedings by issuing an indictment against the accused. This must clearly specify, inter alia, the court in which the case is to be filed, the name of the defendant, the alleged offence and the potential penalty. The indictment is then transmitted, together with the case-file, to the appropriate court. The judge to whom the case is assigned notes on the indictment, which is subsequently served on the defendant, the time when the case will be formally opened.
35. The case is, according to Article 121, formally opened at a court sitting during which the Criminal Court makes the indictment and other documents available to the defendant. If the defendant makes a clear confession at this stage, the case will be adjudicated there and then. Otherwise, he must be given the opportunity to adduce evidence and present a defence, in writing or orally, with the assistance of counsel if appointed.
36. It is for the Public Prosecutor to determine whether the case warrants an adversarial procedure as set out in Articles 131 to 136. If so, the prosecution will appear before the Criminal Court judge. According to Article 130 such a procedure is to be followed if:
(a) the offence is punishable by a term of imprisonment of more than eight years;
(b) the offence is punishable by a term of imprisonment of more than five years and the issues of law or of fact involved require such a procedure; or
(c) the case concerns matters of special significance or the outcome of the case is otherwise of great public importance.
If the adversarial procedure is not followed, the conduct of the case is governed by Articles 123 to 129. The defendant presents his case before the judge in the absence of the prosecution, unless the Public Prosecutor decides otherwise.
37. When the prosecution does not appear the judge must, in accordane with the general rule contained in Article 75, investigate ex officio and independently, all the facts of and issues in the case, even if the prosecution has already investigated them and prepared reports thereon. The judge must also consider all factors relevant to the guilt or innocence of the accused and all mitigating or aggravating circumstances. Once the investigation is completed and the defendant, or his counsel, has submitted his evidence and written observations, the judge determines the case on the basis of all the evidence.
38. An appeal against a conviction by the Criminal Court lies to the Supreme Court. The Public Prosecutor must appear on an appeal, even if he did not do so before the Criminal Court.
39. The Supreme Court is empowered to review questions of both fact and law. According to Article 185, it may annul the entire proceedings or, alternatively, the judgment of the Criminal Court if it finds that serious errors occurred in the conduct of the case at first instance. In that event, the case may be referred back, in whole or in part, to the lower court for fresh proceedings.
40. Under Article 171, a defendant may, with leave of the Public Prosecutor, file a summary appeal with the Supreme Court against a refusal by a Criminal Court judge to withdraw. In the absence of such leave, it is possible for the defendant, in an ordinary appeal to the Supreme Court, to ask for the Criminal Court proceedings to be annulled on the ground that the judge should have withdrawn.
41. Article 36 of the Code of Civil Procedure (Law no. 85/1936) which, according to Article 15 of the Code of Criminal Procedure, applies also to criminal cases, provides that a judge shall withdraw in the following circumstances:
(a) if he is a party or representative of or related to a party to the litigation;
(b) if he has testified to the facts of the case or served as a surveyor or appraiser in connection with the case;
(c) if he has argued the case or given advice to a party;
(d) if he is hostile to a party;
(e) if the case is of financial or moral concern to himself or his relatives;
(f) if there is otherwise a risk that he will not be able to consider the case impartially.
If a judge is disqualified for any of the above-mentioned reasons, the Minister of Justice must appoint another judge to hear the case.
42. A revised Code of Criminal Procedure is expected to enter into force on 1 July 1992. Article 123 of the Bill provides that if the prosecutor does not appear at a court sitting, the case must be adjourned.
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1