ITEMID: 001-58033
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF Z v. FINLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 9. The applicant is a Finnish national, resident in Finland, and was at the time of the events which gave rise to her complaints under the Convention married to X, who was not Finnish. They divorced on 22 September 1995. They are both infected with the human immunodeficiency virus (HIV).
10. On 10 March 1992 the Helsinki City Court (raastuvanoikeus, rådstuvurätten) convicted X and sentenced him to a suspended term of imprisonment for rape on O. on 12 December 1991. The City Court held the trial in camera and ordered that the documents submitted in the case remain confidential for a certain period.
11. On 19 March 1992 X was informed of the results of a blood test performed on 6 March 1992, indicating that he was HIV-positive.
12. In early March 1992, following a complaint of a sexual offence lodged by M., the police opened an investigation into attempted manslaughter, suspecting X of having deliberately subjected M. to a risk of infection with HIV on 1 March.
According to the facts as established by the Commission, during a police interview on 5 March 1992 M. identified X as the perpetrator and the police informed her that X’s spouse, the applicant, was HIV-positive. On 10 April 1992, the police advised M. that X was also infected.
At the hearing before the Court the Government disputed the Commission’s finding that the police had informed M. that the applicant was an HIV carrier. The Delegate replied that the finding had been based on corroborative evidence in the police investigation record and the minutes of the ensuing proceedings before the City Court (see paragraph 19 below).
13. M.’s boyfriend T. met the applicant in mid-March 1992 and asked her whether her husband was an HIV carrier. On 6 April 1992 T. telephoned her and cited passages from confidential court documents relating to the trial mentioned in paragraph 10 above.
On 14 April T. was interviewed by the police as to the content of this conversation.
14. On 7 April 1992 the police attempted to interview the applicant but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse (chapter 17, Article 20 para. 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk)).
15. On 22 April 1992 the public prosecutor charged X with sexual assault on M. On 20 May 1992 M. brought a charge against X of attempted manslaughter.
16. On 10 September 1992, following complaints of rape lodged by P.-L. and P., X was arrested and detained on remand, on suspicion of attempted manslaughter by having raped the complainants earlier that month and thereby deliberately subjected them to a risk of HIV infection.
17. On 14 September 1992 the police interviewed the applicant but she again refused to give evidence against her spouse. She feared that the documents in the case, including any statement she made, would not remain confidential.
18. On 18 September 1992 R. lodged a complaint with the police against X for rape committed on 19 December 1991. The police officer who recorded the complaint added to the record a statement that the applicant had already been found to be HIV-positive in 1990.
The Government submitted at the Court’s hearing that it was R. who had told this to the police.
The police opened an investigation into attempted manslaughter in this case also.
On 7 October and 2 December 1992 and 24 March 1993, the public prosecutor read out in court charges against X of attempted manslaughter in respect of offences committed against M. on 1 March 1992, against P. on 10 September 1992 and against P.-L. on 5 and 6 September 1992. Such charges were also brought by P.-L. on 16 December 1992 and by R. on 19 May 1993 in relation to offences committed respectively on 31 August 1992 and 19 December 1991.
19. On 22 April 1992, at the City Court’s first hearing, held in public, X refused to reply to a question put by M.’s counsel as to whether the applicant was also an HIV carrier.
At a further hearing on 6 May 1992, the City Court decided at the parties’ request that the case should be heard in camera. M. confirmed that she had been informed by the police that the applicant was HIV-positive and T. gave evidence on the content of his telephone conversation with the applicant on 6 April 1992 (see paragraph 13 above).
20. On 18 May 1992 and with X’s consent, L., senior doctor at the hospital where X and the applicant had been treated, transmitted copies of X’s medical records to the public prosecutor. These had been edited so as to omit all references to the applicant.
21. The City Court summoned the applicant to appear before it as a witness on 20 May 1992, but she again relied on her right not to give evidence in a case concerning her husband.
22. On 27 May 1992 M.’s counsel informed the public prosecutor that the copies of X’s medical records appeared to be incomplete. That same day the public prosecutor asked the police to obtain statements from senior doctor L. and any other doctors who had been treating X, whether as experts or ordinary witnesses, in order to obtain information from them on when X had become aware of his HIV infection.
23. On 12 August 1992, despite his objections, the City Court ordered senior doctor L. to give evidence. He disclosed to the court medical data concerning the applicant which had been omitted from the copies of X’s medical records referred to in paragraph 20 above.
The City Court, by way of an interim measure, ordered that the court file, including the transcripts of senior doctor L.’s evidence, be kept confidential.
24. At the hearings of the City Court on 23 September and 18 November 1992, X refused to answer a question put by counsel for the complainants (M., P.-L., P. and R.) as to whether the applicant was HIV-positive. On 30 December 1992, counsel asked him when he had become aware that she was infected. However, X again refused to answer.
25. On 23 September 1992 senior doctor L. complained to the parliamentary ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) about the court decision ordering him to give evidence. In an opinion of 5 February 1993 the parliamentary ombudsman expressed the view that the domestic law had not been violated and that the City Court had properly balanced the public interest in investigating crime against the applicant’s interests in protecting the confidentiality of the information in question.
26. At a court hearing on 27 January 1993, Dr K., who had also treated the applicant, was, despite his objections, required to give evidence as a witness for the prosecution and to disclose information about the applicant. He did so.
27. On 6 February 1993 the police interviewed Dr S.V. as an expert. He provided them with general information on HIV infection and contamination.
28. On 10 February 1993 the public prosecutor requested the police to interview the applicant’s doctors as witnesses in the investigation into the charges against X of attempted manslaughter (see paragraph 18 above). However, since all the doctors concerned refused, the matter had to be referred to the City Court.
29. Despite his renewed objections, senior doctor L. was again heard as a prosecution witness at the City Court’s hearing of 3 March 1993. He once again disclosed information about the applicant. Before giving evidence he read out a letter dated 23 February 1993 which the applicant had sent him. It stated:
"... The case concerns criminal charges against my husband which are considered to outweigh a doctor’s obligation and right to respect secrecy. It seems to me that you have been called to appear as a witness because I myself have invoked my right ... to refuse to give evidence. In your capacity as a doctor you are therefore likely to be asked questions which I, as X’s spouse, have the right to refuse to reveal. The information which you have emanates from me and has been obtained by you because it has been my understanding that it would remain confidential ... [N]or could I have imagined that [such] information could be used for the purpose of criminal proceedings in which my husband is facing charges.
As I see it, the hearing of you as a witness is merely aimed at circumventing my lawful right to refuse to give evidence against my husband ...
... I therefore request you to refer to these points, when you are being asked to give evidence in matters which concern only me. It is my opinion that you should not be obliged to give evidence in those matters and that the charges should be dealt with in such a way that I am not in any way forced to take part in the establishment of the [facts]. [I] am under no obligation to do so ..."
30. In the course of three hearings on 17 March, 7 April and 5 May 1993, the City Court heard evidence from the applicant’s psychiatrist, Dr K.R., and a number of medical doctors who had treated her, namely Drs V., S.-H., S., K., T., R. and apparently also Dr J.S. It also heard Dr S.V., who had interviewed Z for research purposes. The prosecution had called them as witnesses and the court had ordered them to give evidence, although they had objected to doing so.
At the hearing on 17 March, Dr D. confirmed that a blood test performed in August 1990 had shown that the applicant was HIV-positive.
At the hearing on 5 May 1993 the applicant agreed to give evidence since the matters which related to her had already been dealt with by the City Court in other ways. In her evidence she stated amongst other things that she had not been infected with HIV by X.
31. On 8 and 9 March 1993 the police carried out a search at the hospital where the applicant and X had occasionally been treated. The police seized all the records concerning the applicant and appended copies of these to the record of the investigation concerning the charges against X of attempted manslaughter. These measures had been ordered by the prosecution. After photocopying the records the police returned them to the hospital.
The seized records comprised some thirty documents including the following statements:
"...
25 September 1990: [The applicant was] found to be HIV-positive at the beginning of the autumn of 1990. [She] guesses that she was contaminated at the end of 1989 ...
[She] is married to a [foreign] citizen, whom she thinks is [HIV]-negative.
...
5 June 1991: ... [The applicant’s husband] completely denies that he might have an HIV infection ...
7 June 1991: ... According to [the applicant], [her] husband probably has an HIV infection too but [he] has not gone to be tested ...
23 December 1991: ... [The applicant’s husband] has not gone for HIV tests and is of the opinion that he is not a carrier of the virus ..."
32. The police also seized results from a large number of laboratory tests and examinations concerning matters other than the existence of HIV in the applicant’s blood, including information about her previous illnesses, her mental state and a survey into her quality of life based on a self-assessment.
On 10 March 1993 the City Court decided to include the copies of the seized records in its case file. On the same day it heard Dr S.V. as an expert called by the prosecution.
33. On 19 May 1993 the City Court, amongst other things, convicted X on three counts of attempted manslaughter committed on 1 March, 31 August and 10 September 1992 but dismissed the charge of attempted manslaughter for the offence committed on 19 December 1991 and, as regards the latter, convicted him of rape instead. The City Court sentenced him to terms of imprisonment totalling seven years.
The City Court published the operative part of the judgment, an abridged version of its reasoning and an indication of the law which it had applied in the case. The City Court ordered that the full reasoning and the documents in the case be kept confidential for ten years. Both the complainants as well as X had requested a longer period of confidentiality.
34. The complainants, X and the prosecution all appealed against the City Court’s judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten).
35. At a hearing in camera before the Court of Appeal on 14 October 1993, all the appellants requested that the duration of the confidentiality order be extended; an extension to thirty years was discussed. X’s lawyer also informed the court about the applicant’s wish that the order be extended.
36. In a judgment of 10 December 1993, a copy of which was made available to the press (see paragraph 43 below), the Court of Appeal, inter alia, upheld the conviction of X on three counts of attempted manslaughter and, in addition, convicted him on two further such counts related to offences committed on 19 December 1991 and 6 September 1992. It increased his total sentence to eleven years, six months and twenty days’ imprisonment.
As regards the two additional counts of attempted manslaughter, the judgment stated:
"... According to [X - mentioned by his first names and family name] he found out that he was suffering from an HIV infection on 19 March 1992 ... He denied having undergone any HIV examination since being tested in Kenya in January 1990.
According to [X], the result of the HIV test was negative ...
[He] cannot therefore be considered to have known with certainty that he was infected with HIV prior to receiving the results of the test on 19 March 1992.
[X] and [the applicant - mentioned by her first names and family name] got married on 12 April 1990. On 31 August 1990 [the applicant] was found to be an HIV carrier. When she gave evidence before the City Court, [she] said that she had informed X of this finding at the end of 1990. In the Court of Appeal, X said that the applicant had already informed him about her disease before he came to Finland in January 1991. [He] also said that while they were both living in Africa [the applicant] had been suffering from some undefined disease. [She] had then also suspected that she might have become contaminated with HIV but her infection had only been discovered after [she] had returned to Finland.
On the basis of the above statements by the spouses ... it must be considered established that, given the status of [X’s] wife as an HIV carrier, [X] had particular reason to suspect that the infection had been transmitted through their sexual intercourse.
According to [Dr J.S.], a witness before the City Court, [X] must, on the basis of the symptoms of his disease, be considered to have been infected with HIV at least a year before the blood test performed in March 1992 ... According to [Dr S.V.], the disease with symptoms of fever which, according to [the applicant’s] medical records, she is reported to have suffered from in January 1990 and which was treated as malaria is quite likely to have been a primary HIV infection. Regard being had to the fact that, when she contracted [her] disease with symptoms of fever at the end of 1989 or the beginning of 1990, [the applicant] was staying in Mombasa, where she had also met [X], the Court of Appeal finds Dr S.V.’s opinion concerning the primary HIV infection credible. Taking into account the moment when [the applicant] was found to be an HIV carrier, the Court of Appeal finds it likely that she contracted the [disease] from [X].
On these grounds the Court of Appeal considers that [X] must have been aware of his HIV infection at the latest by December 1991. The fact that [he] nevertheless chose not to undergo any HIV examinations other than those referred to above shows that his attitude towards the possibility that others might be contaminated [with HIV] was at best indifferent. Such an attitude must, as regards the question of intent, be considered in the same way as if the perpetrator had known with certainty that he had the disease. When assessing [X’s] intent, his conduct must therefore be viewed in the same way on all the counts of attempted manslaughter with which he has been charged.
...
It has been shown in this case that, on the basis of current knowledge, an HIV infection is lethal. [X] has admitted that, before arriving in Finland, he had already become familiar with the nature of [this] disease and the ways in which it could spread. Having regard also to [his] statement that he had [previously] stayed in Uganda, Kenya and Rwanda, Uganda being a country where the disease is particularly widespread, and the general knowledge that [the disease] is lethal, and [noting] that [X’s] wife has also fallen ill [with this disease], [the Court of Appeal] finds it likely that [X] was familiar with the significant risk of contamination and the lethal effects of [the disease].
According to [senior doctor L.] and [Dr S.V.], who were called as witnesses, the disease may spread through a single act of sexual intercourse ... X must thus have realised that his acts entailed, as a probable consequence, subjecting [the complainants] to a risk that they would be contaminated with HIV. Given that he has nevertheless acted in the manner established, his acts must be considered intentional. In this respect the Court of Appeal has also taken into account that [X] did not inform the complainants of the possible risk of contamination.
...
... [X] must therefore be considered to have committed attempted manslaughter ... on 19 December 1991 and 6 September 1992 also ..."
The Court of Appeal in addition upheld the City Court’s decision that the case documents should remain confidential for a period of ten years.
37. On 26 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) refused to grant X leave to appeal.
38. On 19 May 1995 the applicant applied to the Supreme Court for an order quashing (poistaa, undanröja) the Court of Appeal’s judgment in so far as it permitted the information and material about her to become available to the public as from 2002. In her view, the Court of Appeal’s failure to hear her submissions before deciding whether and for how long the relevant medical records should be kept confidential amounted to a procedural error. That part of its judgment had been prejudicial to her.
In the alternative, she applied for an order reversing (purkaa, återbryta) the Court of Appeal’s judgment, on the grounds that it had manifestly been based on an incorrect application of the law and was incompatible with Article 8 of the Convention (art. 8) in that it was neither "in accordance with the law" nor "necessary in a democratic society".
In the event that the Court of Appeal’s judgment be quashed or reversed, the applicant requested that the matter be referred back to the Court of Appeal, so that she could make submissions.
39. On 22 May 1995 the applicant requested the Helsinki Police Department to make enquiries as to who had informed the police that she was HIV-positive (see paragraph 12 above). She withdrew her request the following month.
40. On 1 September 1995 the Supreme Court dismissed the applicant’s application for an order quashing or reversing the Court of Appeal’s judgment. The first application had been lodged out of time and she did not have locus standi to make the second.
41. On 15 June 1992 the large-circulation evening newspaper Ilta-Sanomat reported X’s trial, stating that he was infected with HIV and that it was not yet certain whether the applicant was also infected, as she had refused to give evidence.
42. On 9 April 1993 the leading daily Helsingin Sanomat reported the seizure of the applicant’s medical records under the headline "Prosecutor obtains medical records of wife of man accused of HIV rapes". The article stated that the wife of X, whose first name and family name were mentioned in full, was a patient in a hospital unit treating patients suffering from HIV infection.
43. The Court of Appeal’s judgment of 10 December 1993 was reported by various newspapers, including Helsingin Sanomat which, after receiving it by fax from the Court of Appeal, published an article on 16 December 1993. The article stated that the conviction had been based on the statement of "[X]’s Finnish wife", while mentioning his name in full; in addition, it referred to the Court of Appeal’s finding that the applicant was HIV-positive.
44. Under the Contagious Diseases Act 1986 and implementing decree (tartuntatautilaki 583/86 ja -asetus 786/86, lag 583/86 och förordning 786/86 om smittsamma sjukdomar), a person who is suffering from a disease such as infection with HIV or who it is found might have contracted such a disease must, on request, inform his or her doctor of the likely source of contamination (section 22 (2) of the Act and section 2 of the decree).
45. Under the Patients’ Status and Rights Act 1992 (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter 785/92) which entered into force on 1 May 1993, medical records must be kept confidential. Information may only be disclosed to a third party with the patient’s written consent. It may nevertheless be disclosed to, among others, a court of law, another authority or an association which has been granted access thereto by law (section 13).
46. Under chapter 17, Article 23 para. 1 (3), of the Code of Judicial Procedure, a doctor of medicine may not, without his or her patient’s consent, give information as a witness which he or she has obtained in his or her professional capacity and which, because of its nature, should be kept confidential.
However, paragraph 3 provides that a doctor may be ordered to give evidence as a witness in connection with a charge relating to an offence for which a sentence of at least six years’ imprisonment is prescribed (as is the case with regard to manslaughter and attempted manslaughter).
In such cases, section 27 (2) of the Pre-trial Investigation Act 1987 (esitutkintalaki, förundersökningslag 449/87) entitles doctors to give evidence even during the pre-trial investigation.
47. Section 28 (1) of that Act provides:
"If a witness manifestly has knowledge about a matter of importance to the clarification of [a suspect’s] guilt and if he [or she] refuses to reveal this even though obliged to do so or, under section 27 (2), entitled to do so, the court may, at the request of the chief investigating officer, require [the witness] to disclose his knowledge about the matter. In such cases all or part of the questioning of the witness may take place in court."
A party to the pre-trial investigation and his counsel may attend the proceedings in which such a request by the chief investigating officer is considered and the actual hearing where the witness gives evidence (section 28 (2)).
48. Chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act 1987 (pakkokinolaki, tvångsmedelslagen 450/87) provides:
"A document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial ..., and [provided that] the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27 (2) of the Pre-trial Investigation Act, a person [referred to in chapter 17, Article 23, of the Code of Judicial Procedure] would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document."
49. Chapter 4, section 13, of the Act reads:
"At the request of a person whom the case concerned, the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The examination of such a request is, in as far as appropriate, governed by the provisions in chapter 1, sections 9 and 12, on the examination of requests for detention on remand. The court shall reserve those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue."
50. Under the Publicity of Official Documents Act 1951 (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/51), official documents are in principle public (section 1). They include not only documents drawn up and issued by an authority but also documents submitted to an authority and which are in its possession (section 2 (1)). A pre-trial investigation record, however, shall not be public until the matter has been brought before a court or the police investigation has been closed without charges being brought (section 4).
Everyone has access to official public documents (section 6, as amended by Act no. 739/88). However, medical reports are accessible to the public only with the consent of the person to whom they relate (section 17). In the absence of such consent, a party to criminal proceedings shall nevertheless have access to such documents if they are capable of affecting the outcome of the case (section 19 (1), as amended by Act no. 601/82).
51. Documentary evidence obtained during a pre-trial investigation shall be kept in a record of investigation, if this is considered necessary for the further consideration of the case. The record shall include all documents assumed to be of importance and indicate, inter alia, whether other documentary evidence has been obtained but omitted from the record (section 40 of the Pre-trial Investigation Act).
52. If all or part of an oral hearing has been held in camera or if, during such a hearing, any confidential document or information has been submitted, the court may decide that all or part of the case material be kept confidential for up to forty years. The operative part of the judgment and the legal provisions relied on shall always be made public (section 9 of the Publicity of Court Proceedings Act 1984 (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/84)).
No separate appeal against a decision concerning the publicity of proceedings is allowed (section 11). The decision must thus be challenged in an ordinary appeal lodged by a party to the proceedings.
53. Under the 1889 Penal Code (rikoslaki, strafflag 39/1889), the disclosure of confidential information by a civil servant or a public employee is a criminal offence (chapter 40, which has been amended subsequently).
54. Under the Constitution (Suomen hallitusmuoto, Regeringsform för Finland 94/19), anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence, of a civil servant, is entitled to prosecute the civil servant, or to demand that he or she be prosecuted, and to claim damages (Article 93 para. 2). Under the Damage Compensation Act 1974 (vahingonkorvauslaki, skadeståndslag 412/74) proceedings may also be brought against the State for actions taken by civil servants (chapters 3 and 4).
55. A person involved in a pre-trial investigation may be prohibited, on pain of a fine or a maximum of six months’ imprisonment, from revealing information concerning third parties which was not previously known to him or her and which relates to the investigation. Such a prohibition may be imposed if the disclosure of such information in the course of the investigation is liable to jeopardise the investigation or to cause harm or be prejudicial to a party to the investigation or to any third party. Heavier sentences may be imposed if the disclosure constitutes a separate offence (section 48 of the Pre-trial Investigation Act).
56. Under the Publicity of Official Documents Act 1951, neither parties nor their representatives are allowed to disclose confidential material which has been made available to them in their capacity as parties to persons not involved in the proceedings (section 19a). Disclosure in breach of this rule is punishable by a fine (section 27).
VIOLATED_ARTICLES: 8


ITEMID: 001-58199
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF NIDERÖST-HUBER v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 6. Mr Armin Nideröst-Huber is a Swiss citizen born in 1940 and resident in Rickenbach (Switzerland).
7. On 9 December 1985 he was dismissed without notice from the posts of chairman (Verwaltungsratspräsident) and managing director (Geschäftsführer) of a family-run public limited company (Aktiengesellschaft) incorporated under Swiss law, following a change of majority among the shareholders.
8. On 29 July 1986 he brought proceedings against the company seeking arrears of salary and a severance payment (Abgangsentschädigung). The Schwyz District Court (Bezirksgericht) gave judgment against him on 22 September 1988.
9. On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht) dismissed an appeal (Berufung) by the applicant. Endorsing the reasons of the lower court, it held that the applicant’s dismissal had been justified because in the conflict between Mr Nideröst-Huber and the minority shareholders he had neglected the interests of the company in favour of his own. As a result, the new majority no longer trusted him to manage the company honestly.
10. The applicant then applied to the Federal Court by means of an appeal (Berufung) lodged with the Cantonal Court on 12 October 1990. The Cantonal Court transmitted the appeal to the Federal Court on 22 October together with the case file and one page of observations (Stellungnahme zur Berufung), which were not communicated to the applicant. In these observations it argued that the appeal should be dismissed and refuted some of the grounds of appeal, emphasising, inter alia, that Mr Nideröst-Huber’s dismissal had been the legitimate consequence of his intractable and unlawful conduct over a number of years at the head of the firm.
11. The company submitted a defence (Berufungsantwort) on 12 December 1990. This was communicated to Mr Nideröst-Huber.
12. On 1 March 1991 the Federal Court dismissed the appeal, holding that the Cantonal Court had rightly ruled that the applicant’s dismissal without notice was justified, since he had abused his majority shareholding in the company in order to serve his personal interests, systematically disregarding those of the minority shareholders, even in breach of binding judicial decisions; the new majority had therefore been justified in dismissing him forthwith.
13. The judgment was served on the applicant on 30 April 1991. On the same day he asked the Federal Court to supply him with a copy of the Cantonal Court’s observations (see paragraph 10 above). He obtained this on 2 May 1991.
14. Section 56 of the Federal Judicature Act of 16 December 1943 provides:
"The cantonal authority shall immediately inform the respondent of the grounds of appeal, even if the appeal appears to be out of time, and shall transmit to the Federal Court, within one week, the documents whereby the appeal has been lodged, a copy of the final decision and the preliminary decisions which have preceded it, the complete file and, where appropriate, its own observations. It shall also inform the Federal Court of the date on which the impugned decision was notified, the date on which the appeal reached it or on which it was posted and the date on which it was communicated to the respondent."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96765
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: X. v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, X., is an Irish national who was born in 1986 and lives in Dublin. He was represented before the Court by Mr J Quinn, a lawyer practising in Dublin. The Irish Government (“the Government”) were represented by their co-Agent, Mr P. White of the Department of Foreign Affairs.
2. In the early hours of the morning of 11 January 2003 the applicant, who had stolen a car and driven it through a red traffic light, was involved in a collision with another vehicle in Dublin. Prior to the collision the applicant had driven at considerable speed and had rammed three police cars which had been involved in an attempt to stop the applicant. Two people were killed in the collision. Mr G., the driver of the other vehicle, a taxi, was killed instantly and one of the passengers in the stolen car driven by the applicant died some hours later.
3. On the following day (12 January 2003) the applicant was arrested and detained under section 4 of the Criminal Justice Act, 1984. He was released from custody but arrested again in order to be charged with an offence under section 112 of the Road Traffic Act 1961, as amended. Y, the surviving passenger from the stolen car, was also so charged. On 13 January 2003 the applicant and Y (neither of whom had by then attained the age of majority) appeared before the Dublin District Court, sitting as the Children Court (“the Children Court”). Restrictions are imposed upon reports of proceedings before the Children Court pursuant to the provisions of the Children Act 2001.
4. Considerable publicity was generated by the incident. The Director of Public Prosecutions brought proceedings for contempt of court against certain newspapers that had identified (by initials) the applicant and Y and on 7 March 2003 the High Court convicted the said newspapers of contempt of court in respect of the articles published after the applicant and Y. had been charged.
5. Meanwhile, in view of the nature of the offences with which he had been charged, the applicant’s case had been transferred from the Children Court to the Dublin Circuit Criminal Court. On 15 July 2003 the applicant pleaded guilty to manslaughter. On 22 October 2003 he pleaded guilty to a further count of manslaughter and to a count of unlawful use of a mechanically propelled vehicle. On that day (22 October 2003) the applicant was sentenced to seven years’ detention. At that time, the applicant was 17 years and 5 months old.
6. Following the sentencing, the trial judge directed that the name of the applicant could not be published in the media on the grounds that the applicant was a child within the meaning of the Children Act 2001 (“the 2001 Act”) and that publication of his name was prohibited by the Act. However, later that day, legal representatives from a number of media organisations brought an application, on notice to the applicant’s lawyers, to lift the prohibition on publishing the applicant’s name on the basis that the 2001 Act did not confer jurisdiction on the Circuit Criminal Court (before which the applicant had been tried) to make the Order. Having heard submissions from the parties on the matter, the said judge vacated his earlier order. Counsel for the applicant, having failed in opposing the application, then asked for a transcript of the ruling to be made available stating “We have other remedies”.
7. That evening the applicant’s name was broadcast on the television and the radio. His picture also appeared on the television. The newspapers later published his name and his picture.
8. Article 34(1) of the Constitution of Ireland 1937 provides:
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
Article 40(3) reads, in so far as relevant, as follows:
“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
9. The domestic courts recognise further unspecified personal rights protected by Article 40(3) of the Constitution either as rights ancillary or corollary to those expressly mentioned in Article 40(3)(2) or as latent in the expression “personal rights” in Article 40(3)(1). Thus, the courts have recognised, inter alia, a right to privacy as one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. In McGee v. the Attorney General [1974] IR 284 the Supreme Court held that:
“Whilst the ‘personal rights’ [in Article 40.3 of the Constitution of Ireland] are not described specifically, it is scarcely to be doubted that the right to privacy is universally recognised and accepted with possibly the rarest of exceptions.”
In the case of Kennedy and Others v. Ireland and the Attorney General [1988] ILRM 472, the plaintiffs were awarded £50,000 in damages when the Court found that an unjustifiable tapping of the plaintiffs’ telephones breached their right to privacy as protected under Article 40(3) of the Constitution.
In The State (Quinn) v Ryan [1965] IR 70 the Supreme Court found that:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.”
10. Section 45(1) of the above Act, where relevant, provides as follows:
“Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters...”
Section 45(2) of the above Act expressly provides that the cases prescribed by section 45(1):
“. . .shall be in addition to any other cases prescribed by any Act of the Oireachtas.”
11. Pursuant to section 45(1) of the 1961 Act, the domestic courts have made Orders prohibiting the disclosure of the identities of parties, including minors, in a variety of cases including:- Kennedy and McCann [1976] IR 382 (which involved a custody dispute between parents and subsequently contempt of court proceedings against a journalist and newspaper editor who breached the order); In Re R. Ltd. [1989] IR 126 (proceedings involving a company and one of its directors); JPD v MG [1991] 1 IR 47 (a paternity dispute); Attorney General v. X [1992] 1 IR 1 (proceedings involving a young girl who sought an abortion); In Re The Child Abduction and Enforcement of Custody Orders Act, 1991; PSS v. JAS (otherwise C) Unreported, High Court, 22 May 1995, (contempt of court proceedings were issued against a newspaper editor and journalist for breaching a section 45 order); and In Re A Ward of Court (withholding of medical treatment) (No. 1) [1996] 2IR 73.
12. Section 3 of the 2001 Act provides the following definitions:
“(1) In this Act, unless the context otherwise requires...
“child” means a person under the age of 18 years;
“Court”, in Parts 7 and 8, means the Children Court;”
Section 71 of the 2001 Act (which is in Part 7 of the Act) provides (in so far as relevant):
“(1)(a) The District Court, when hearing charges against children or when hearing applications for orders relating to a child at which the attendance of the child is required or when exercising any other jurisdiction conferred on the Children Court by or under this or any other Act ... shall be known as the Children Court and is referred to as “the Court” in this Part and Part 8.”
Section 75 of the 2001 Act provides (in so far as relevant):
“(1)...the Court may deal summarily with a child charged with any indictable offence, other than an offence which is required to be tried by the Central Criminal Court or manslaughter, unless the Court is of the opinion that the offence does not constitute a minor offence fit to be tried summarily or, where the child wishes to plead guilty, to be dealt with summarily.”
Section 93 of the 2001 Act (which is in Part 8 of the Act) provides (in so far as relevant):
“(1) In relation to any proceedings before the Court against a child or in relation to a child under Part 9-
(a) no report shall be published or included in a broadcast which reveals the name, address or school of any child concerned in the proceedings or includes any particulars likely to lead to the identification of any child concerned in the proceedings, and
(b) no picture shall be published or included in a broadcast as being or including a picture of any child concerned in the proceedings or which is likely to lead to his or her identification.
. . .
(6) This section shall not affect the provisions of any enactment concerning the anonymity of an accused or the law relating to contempt of court.”


ITEMID: 001-84308
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KARAMITROV AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6;Violation of Art. 13+6;Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 13+P1-1
JUDGES: Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 7. On the night of 14 October 1991 a car was stolen from an unsecured car park. Early in 1992 a preliminary investigation in respect of the theft was opened against an unknown perpetrator.
8. On 28 May 1992 the first applicant was stopped by the police while driving the car of his parents – the second and third applicants. The police established a discrepancy between the numbers on the chassis of the vehicle and those in the registration documents of the vehicle which had been issued by the Pazardzhik Traffic Police on 17 July 1973. They seized and impounded the car in order to check its registration documents and ownership. The first applicant was questioned regarding the discrepancy in the car’s registration documents both on the above date and on 4 June 1992.
9. The investigating authorities commissioned a technical examination of the seized vehicle. In a report of 14 April 1993 the technical expert concluded that the number plate on the chassis of the car was not the original, but had been changed.
10. On 8 June 1993 the first applicant was charged with being an accessory to the theft of the car on 14 October 1991. He was questioned on the same day and then released. A restriction was imposed on the first applicant, not to leave his place of residence without the consent of the Prosecution Office.
11. No further investigative procedures were conducted in the course of the preliminary investigation.
12. On 3 April 1995 the first applicant complained to the Pazardzhik District Prosecution Office about the length of the criminal proceedings. He did not receive a response.
13. Subsequently, the first applicant lodged similar complaints with the Pazardzhik District Prosecution Office, the Pazardzhik Regional Prosecution Office, the Plovdiv Appellate Prosecution Office and the Chief Prosecutor about the length of the criminal proceedings. He did not receive a response to any of them.
14. Sometime in 1998 the investigator in charge of the preliminary investigation died, while the assistant investigator retired. The first applicant’s case was never reassigned to another investigator.
15. Sometime in September 1999 the first applicant lodged another complaint about the length of the criminal proceedings with the Supreme Cassation Prosecution Office. In response, the Plovdiv Appellate Prosecution Office was instructed to investigate the first applicant’s complaint.
16. In a decision of 20 October 1999 of the Pazardzhik District Prosecution Office the preliminary investigation was discontinued in respect of the first applicant as unproven. The restriction on the first applicant not to leave his place of residence without the consent of the Prosecution Office was removed.
17. The criminal proceedings continued, against an unknown perpetrator, until 27 September 2004 when the Pazardzhik District Prosecution Office terminated them due to the expiry of the statute of limitations for the offence. In its decision, the Prosecution Office expressly noted that no investigative procedures had been conducted in the proceedings after 8 June 1993, the date on which the first applicant was arrested and charged.
18. The car was seized and impounded by the police on 28 May 1992 in order to check its registration documents and ownership. No protocol of seizure was prepared and the second and third applicants were not given a receipt or any other document evidencing the impounding of the vehicle.
19. The car remained impounded by the police for the duration of the preliminary investigation against the first applicant as physical evidence of the offence.
20. On 9 November 1994 the person from whom the car had allegedly been stolen on 14 October 1991 requested possession of the vehicle.
21. The question of returning the vehicle to the second and third applicants was raised by the first applicant in his complaints regarding the length of the criminal proceedings lodged with the Pazardzhik District Prosecution Office on 3 April 1995, the Supreme Cassation Prosecution Office on 19 October 1999 and the Chief Prosecutor in September 1999. No action was taken in response to any of them.
22. In its decision of 20 October 1999 to terminate the criminal proceedings against the first applicant the Pazardzhik District Prosecution Office noted that no protocol or other document existed to show “who, when, why and how” the vehicle of the second and third applicants had been seized and impounded. Nevertheless, the Prosecution Office ordered that the car be handed over to the person from whom it had allegedly been stolen on 14 October 1991 because it considered that, inter alia, on the basis of the investigative procedures performed during the preliminary investigation she was the owner of the vehicle. The applicants appealed against the decision in respect of the order to hand over the car to another person.
23. On an unspecified date the police handed over the car of the second and third applicants to the person from whom it had allegedly been stolen.
24. In a decision of 10 November 1999 the Pazardzhik Regional Prosecution Office upheld the decision of the Pazardzhik District Prosecution Office on grounds similar to those contained in the latter’s decision. The applicants appealed further.
25. On 18 November 1999 the Plovdiv Appellate Prosecution Office quashed the above decisions of the lower-level Prosecution Offices. It found, inter alia, that it was not within their competencies to determine the ownership of the vehicle and, in view of the termination of the preliminary investigation against the first applicant, the car had to be returned to the persons from whom it had been seized. It further found that the seizure of the vehicle and the resulting impounding had been unlawful because at the time the seizure had been made no protocol to that effect had been executed. The person to whom the car had been handed over appealed against the decision.
26. In a decision of 10 March 2000 the Supreme Cassation Prosecution Office upheld the decision of the Plovdiv Appellate Prosecution Office on grounds similar to those contained in the latter’s decision.
27. The car was returned to the second and third applicants on 19 May 2000. As a result of the period of impounding it had been damaged – its paintwork had deteriorated and the radiator was cracked. Parts of the car were also missing, such as two spark plugs and cables, the left headlight, the spare tyre, the indicators, the cover of the right back brake light, the door handles and other things. They estimated the damage to be worth around 100 Bulgarian levs (approximately 51 euros). The first applicant, who signed the protocol of transfer, made a reservation that he would make a further assessment of the damage caused to the vehicle and that a subsequent claim might be filed against the District Prosecution Office in that respect.
28. The second and third applicants did not initiate any action to seek compensation for the alleged damage caused to the vehicle.
29. Paragraphs 1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974) provided as follows:
“(1) Physical evidence must be carefully examined, described in detail in the respective record, and photographed, if possible.
(2) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence.
...
(4) Physical evidence which, because of its size or other reasons, cannot be attached to the case file, must be sealed, if possible, and deposited for safekeeping at the places indicated by the respective authority.”
30. Paragraphs 1 and 2 of Article 108 of the Code, as in force at the relevant time and until 1 January 2000, provided as follows:
“(1) Physical evidence shall be held until the termination of the criminal proceedings.
(2) Chattels which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case.”
31. Article 108 paragraph 2 of the Code was amended on 1 January 2000 to clarify that it was within the powers of the Prosecution Office to rule on requests for the return of chattels held as physical evidence. In addition, a right of appeal to a court was introduced against refusals by the Prosecution Office to return such chattels (Article 108 paragraph 4 of the Code of Criminal Procedure as in force after 1 January 2000).
32. If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence, the authorities were obliged to keep those items safe until the relevant judgment became final (Article 110).
33. The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name.
34. Section 1 (1) of the State and Municipalities’ Responsibility for Damage Act of 1988 (the “SMRDA”: title changed in 2006) provided, as in force at the relevant time, as follows:
“The State shall be liable for damage caused to [private persons] from unlawful acts, actions or inactions of its apparatus and officials [in the exercise] of administrative duties.”
35. Section 2 of the SMRDA provides as follows:
“The State shall be liable for damage caused to [private] persons by the [apparatus] of ... the investigation authorities, the prosecution authorities, the court ... for an unlawful:
1. detention ... ;
2. charge for an offence, if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [in question] or the act is not an offence ... ;
3. sentence ... ;
4. ... forced medical treatment ... ;
5. ... imposition of administrative sanctions ... ;
6. enforcement of an imposed sentence in excess of the determined period ... ”
36. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act of omission (section 4). The person aggrieved has to lodge an “action ... against the [entity] ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7). Compensation for damage arising from instances falling under section 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 § 1).
37. The practice of the Bulgarian courts in the application of the Act has been very restrictive.
38. In particular, the domestic courts have ruled that liability for damage stemming from instances within the scope of section 1 of the Act are to be examined only under the Act and not under the general rules of tort (решение № 55 от 14.III.1994 г. по гр.д. № 599/93 г., ВС, IV г.о.).
39. Similarly, liability of the investigation and the prosecution authorities may arise only in respect of the exhaustively listed instances under section 2 (1) and (2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section 2 of the Act.
40. Liability under section 2 of the Act may arise only for unlawful actions, but not for unlawful inactions by the investigation authorities, the prosecution authorities and the courts (решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.).
41. Up to 2005 there existed conflicting domestic case law as to whether liability of the State arose under section 2 (2) of the Act in instances, such as in the present case, when criminal proceedings were discontinued as “unproven” (решение от 04.02.2003 г. по въззивно гр. д. № 1538/2002 г. на ПАС and решение № 1085 от 26.07.2001 г. по гр. д. № 2263/2000 г., IV г.о.). The issue was clarified by the General Assembly of the Civil Chambers of the Supreme Court of Cassation in Interpretative decision no. 3/2004 of 22 April 2005 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС) which found that section 2 (2) of the Act was applicable in such instances.
42. The Government presented two hundred and one judgments under the SMRDA where the domestic courts had found the State liable to pay damages to claimants. Of these cases (a) thirty-seven judgments were based on section 2 (2) of the Act and related to being unlawfully charged with an offence; (b) forty-seven were based on section 1 of the Act relating to unlawful acts by the administration; (c) a further one hundred and one were also based on section 1 of the Act but stemmed from unlawful actions or inactions by the administration; and (d) sixteen cases related to more specific complaints falling under Article 3 and 5 of the Convention.
43. In their submissions, the Government stressed the existence of a judgment delivered by the Pazardzhik District Court on 14 December 2005. In that case the domestic court had ordered the Pazardzhik District Police Authority to pay compensation for the pecuniary damage suffered by a claimant as a result of the former’s inactivity in keeping safe a vehicle seized as physical evidence in a case. A related claim in respect of non-pecuniary damage had been dismissed and the Prosecution Office had also been ordered to pay the claimant compensation for the non-pecuniary damage suffered as a result of being unlawfully charged with an offence.
44. In their submissions in reply, the applicants informed the Court of the subsequent development of the above-mentioned case. The judgment relied on by the Government had been appealed against both by the Pazardzhik District Police Authority and the Prosecution Office. The Pazardzhik Regional Court examined the appeal and delivered a final judgment on 10 June 2006. It quashed the first-instance court’s judgment in respect of the liability of the Pazardzhik District Police Authority for the damage to the claimant’s vehicle as it found that the police’s actions, or inactions, as they related to the safekeeping of a vehicle as physical evidence, did not fall within the definition of “administrative duties” under section 1 nor under any of the instances under section 2 of the Act. Thus, the police could not be held liable for their actions or inactions in similar such instances. Separately, the Pazardzhik Regional Court upheld the first-instance court’s judgment against the Prosecution Office.
45. The Obligations and Contracts Act provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. Under section 110 the claim for damage is extinguished with the expiry of a five year prescription period.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-72572
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LEVEAU AND FILLON v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Francis Leveau (“the first applicant”) and Mr JeanFrançois Fillon (“the second applicant”), are French nationals who were born in 1959 and 1955 respectively. The first applicant lives in CoudrayauPerche and the second applicant in AutelsVillevillon, in the département of EureetLoir. They were represented before the Court by Mr C. Charles, a lawyer practising in Paris. The respondent Government were represented by their Agent, Mr R. Abraham, who was succeeded as Agent by Ms E. Belliard, Head of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants both run farms rearing pigs for meat production. This type of farm is subject to the legislation on establishments classified for the purposes of environmental protection (Law no. 76663 of 19 July 1976).
The applicants’ farms were inspected by the veterinary services department of Eure-et-Loir, as a result of which criminal proceedings were instituted against the applicants.
The first applicant was convicted of running the farm without giving prior notice, while the second applicant was convicted of running his farm without obtaining prior authorisation from the prefect.
The first applicant, Mr Leveau, co-manages with his wife a limited liability farm company by the name of EARL Leveau.
On 27 December 1996 the applicant acquired a farm situated a few kilometres from his place of residence (CoudrayauPerche), in the neighbouring municipality of Les Etilleux.
In a letter of 5 February 1997 the applicant’s wife informed the veterinary services department that she and the applicant had purchased the farm and planned to construct a building for raising pigs on deep straw bedding, designed to accommodate 449 meatproducing pigs. The letter also informed the department that notice to that effect would be given by July 1997.
On 27 February 1997 the inspector of establishments classified for the purposes of environmental protection carried out an inspection of the piggery. The applicant arrived in the late morning while the inspection was in progress.
In a report drawn up the same day, the inspector noted that there were around 210 fattening pigs on the farm. As an establishment housing between 40 and 450 pigs, the farm fell into the category of classified establishments in respect of which notice had to be given to the prefecture (heading 2102). The inspector’s report stated that the applicant, who had arrived on the farm during the inspection, had been unable to provide a document from the prefecture of EureetLoir acknowledging receipt of the required notice.
On 17 April 1997 the applicant was interviewed by officers at AuthonduPerche gendarmerie station. He referred to the letter of 5 February 1997 stating his intention to give notice by July 1997.
On 5 August 1997 the public prosecutor at the Chartres tribunal de grande instance summoned the applicant to appear before the NogentleRotrou Police Court on a charge of operating a classified establishment without giving prior notice. The establishment in question housed 210 fattening pigs, so that it came under heading 2102 of the classification and was subject to notice. At the outset of the trial the applicant objected that the proceedings were void because a senior police officer (officier de police judiciaire) had entered his home unlawfully for the purposes of Article 76 of the Code of Criminal Procedure, the inspector’s visit having taken place in the farmer’s absence and without his express consent. He further objected that the inspector’s report was invalid, as it had not mentioned his status as a senior police officer or provided accurate details as to the number and weight of the pigs.
In a judgment of 27 March 1998 the Police Court dismissed the objection, finding as follows:
“Unless it were to be argued that the defendant had made his home in the piggery, which was hardly the case, the building housing the pigs cannot be considered to satisfy the criteria for a ‘home’.
Accordingly, it must be held that the inspector did not conduct a search or enter the applicant’s home unlawfully. Nor is it necessary to respond to the unfounded assertion that inspectors of establishments classified for the purposes of environmental protection have the status of senior police officers, which they patently do not.
The inspector merely made use of his powers to inspect at any time the establishments for which he is responsible under section 13 of Law no. 76663, without his being bound by the rules governing searches.”
On the merits, the court found the applicant guilty of operating a classified establishment without giving prior notice, and sentenced him to payment of a fine of 6,000 French francs (FRF), equivalent to 915 euros (EUR).
The applicant appealed.
In a judgment of 20 November 1998 the Versailles Court of Appeal ruled as follows on the objection that the proceedings were void as there had been a violation of Article 8 of the Convention.
“The concepts of ‘private life’ and ‘home’ remain confined to the personal sphere, although they may in certain circumstances encompass professional and commercial activities.
The visit by the inspector of classified establishments was conducted in accordance with the provisions of section 13 of the Law of 19 July 1976 ... in a piggery used solely for agricultural purposes which was a potential source of harm to the environment, and in no sense in a ‘home’ within the meaning of Article 8 of the European Convention on Human Rights. The first objection should therefore be dismissed.
Furthermore, reports by inspectors of classified establishments are generally drawn up during the inspection, which constitutes an administrative measure. The provisions of Article 76 of the Code of Criminal Procedure do not therefore apply. In any event, the inspectors’ powers derive from section 13 of the Law of 19 July 1976, which confers specific powers derogating from ordinary police procedure. Section 13 states that inspectors ‘may inspect the establishments under their supervision at any time’. The intention of the law in this respect is to allow the prefecture to ensure that classified establishments which, by definition, are a potential source of harm or nuisance to the community, are being operated in accordance with the relevant legislation or rules. Applying the provisions of Article 76 to the supervision of these establishments would deprive the measures laid down by Law no. 76-663 of 19 July 1976 of any effect.”
The Court of Appeal upheld the applicant’s conviction at first instance but, noting that the situation had been regularised in the meantime, reduced the fine to FRF 3,000 (EUR 457).
In a judgment of 26 April 2000, served on the applicant on 7 June 2000, the Court of Cassation dismissed an appeal by the applicant, finding that the appellate court had given reasons for its decision, notably in the following terms:
“... inspections of establishments under their supervision, carried out under section 13 paragraph 2 of the Law of 19 July 1976 by the inspectors of classified establishments, do not constitute general searches or house searches within the meaning of Articles 59 and 76 of the Code of Criminal Procedure.”
The second applicant, Mr Fillon, runs a farm. In 1980 he built a unit on the farm to house pigs for breeding and fattening.
The ground plan supplied by the applicant shows that the farm comprises a collection of several farm buildings and also his house, which is set back from the buildings housing the pigs.
On 6 February 1997 the veterinary services inspector conducted an inspection of the farm, in the presence of the applicant, and produced a report noting the presence of one boar, 90 sows and around 600 meatproducing pigs. The report stated that the farm had over 450 pigs, so that it came under heading 2102 of the classification of establishments subject to authorisation by the prefecture. In his report, the inspector noted that the applicant had been unable to produce an authorisation decision from the prefecture of Eure-etLoir, as he had not submitted the relevant application.
On 11 March 1997 the applicant was interviewed by officers at AuthonduPerche gendarmerie station. He told them that he had increased the capacity of the farm out of financial necessity.
The public prosecutor at the Chartres tribunal de grande instance summoned the applicant to appear before the Criminal Court on a charge of operating a classified establishment, consisting of a pig farm with more than 450 animals, without prior authorisation from the prefect (heading 2102).
In a judgment of 30 June 1998 the Chartres Criminal Court set aside the report and the subsequent proceedings, finding:
“... under section 13 of the Law of 19 July 1976, these inspectors may inspect the establishments under their supervision at any time.
However, although these provisions allow them to derogate from the hours laid down for house searches by Article 59 of the Code of Criminal Procedure, they do not exempt them from the requirement set forth in Article 76 of the Code to obtain, in the case of a preliminary investigation, the prior express consent of the person concerned.
It should be noted in this connection that a farm constitutes a ‘home’.
It should further be noted that the inspection of Mr Fillon’s farm was carried out in order to ascertain the situation vis-à-vis the receipt for notice in respect of 370 sows.
Hence, the provisions of Article 76 of the Code of Criminal Procedure should have been complied with, and the infringement of those provisions renders the report and, consequently, the subsequent proceedings and prosecution invalid.”
The prosecution appealed.
The applicant argued before the Court of Appeal that the right to respect for his home guaranteed by Article 8 of the Convention applied to business premises. He maintained that the interference with his property by the inspector constituted a violation of Article 8.
In a judgment of 17 December 1998 the Versailles Court of Appeal set aside the judgment, finding:
“However, while Article 8 of the aforementioned Convention provides that everyone shall have the right to respect for his private and family life, his home and his correspondence and that a public authority may interfere with that right only under certain very stringent conditions, it is none the less true that the concepts of ‘private life’ and ‘home’ remain confined to the personal sphere, although they may in certain circumstances encompass professional and commercial activities.
In the present case, Mr Guerrin’s inspection was conducted ... in a piggery put to exclusively agricultural use ... [and], given that Mr Guerrin simply counted the animals, in no sense in the home of JeanFrançois Fillon, whose residence and administrative premises are separate from the piggery.
The report by the inspector of classified establishments is generally drawn up during the inspection, which constitutes an administrative measure.
Consequently, the provisions of Article 76 of the Code of Criminal Procedure do not apply.”
With regard to the merits, the Court of Appeal found the applicant guilty of not applying for authorisation as required by the rules governing his farm, and sentenced him to a fine of FRF 3,000 (EUR 457). An announcement of the conviction would be published in two local newspapers and posted at the entrance to the farm.
On 26 April 2000 the Court of Cassation delivered a judgment, served on the applicant on 31 May 2000, dismissing an appeal by the applicant and finding:
“...inspections of establishments under their supervision, carried out under section 13 paragraph 2 of the Law of 19 July 1976 by the inspectors of classified establishments, do not constitute general searches or house searches within the meaning of Articles 59 and 76 of the Code of Criminal Procedure.”
This Law governed all establishments which were a potential source of significant harm or nuisance to the surrounding area and the environment (section 1). It imposed legal and practical requirements on farmers, such as the requirement to obtain authorisation or give notice (see section 3 below). The 1976 Law has since been repealed and its provisions consolidated in Articles L 511-1 to L 517-2 of the Environment Code.
The relevant provisions are consolidated in Articles L. 511-1 et seq. of the Environment Code. The Law, as it stood at the relevant time, provided:
“The provisions of this part shall cover factories, workshops, warehouses, construction sites and, in general terms, establishments owned or operated by any natural person or legal entity under public or private law which are a potential source of harm or nuisance to the surrounding area, public health and safety, agriculture, the conservation of nature and the environment or the conservation of sites, monuments and archaeological remains.”
“Establishments which are a potential source of significant harm or nuisance to the interests referred to in section 1 shall be subject to authorisation by the prefecture ...
Establishments which, although not a potential source of such harm or nuisance, are none the less bound by the general rules laid down by the prefecture to protect the interests referred to in section 1 within the département, shall be required to give notice.”
“The persons responsible for the inspection of classified establishments ... shall take an oath and be bound by professional secrecy ...
They may inspect the establishments under their supervision at any time.”
“Anyone who operates an establishment without the required authorisation shall be liable to a prison sentence of between two months and one year and/or to payment of a fine of between FRF 2,000 and FRF 500,000 ...”.
“The following persons shall be liable to the fine laid down for Class 5 infringements:
1. Anyone operating an establishment which is subject to notice without having given notice as required by section 3 of the Law of 19 July 1976 ...”.
Pigs (establishments for rearing, selling, transporting, etc.) in pens or outdoors:


ITEMID: 001-59622
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF N.F. v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;No violation of Art. 8 with regard to the divulgence of the applicant's membership of the freemasons;Not necessary to examine Art. 8;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, who was born in 1942, is a judge. After the summer of 1990 he applied for membership of the Grande Oriente d’Italia di Palazzo Giustiniani. On 5 March 1991 he became a member of the Adriano Lemmi Lodge in Milan.
During the summer of 1992 the applicant read in the national press that certain State prosecutors, in particular the state prosecutor of Palmi (Reggio di Calabria), had begun inquiries, which, according to certain rumours, also concerned lodges associated with the Grande Oriente d’Italia di Palazzo Giustiniani.
In October 1992 the applicant asked to distance himself from the organisation and on 5 November 1992 he was made a “dormant member”.
9. The Palmi public prosecutor’s office sent the National Council of the Judiciary (Consiglio Superiore della Magistratura) a list of judges who were Freemasons. The National Council of the Judiciary then sent it to the Minister of Justice and Principal State Counsel at the Court of Cassation, who instituted disciplinary proceedings against the judges. The list was then made public – at least in part – by the press.
10. In July 1993, after an inquiry had been commenced, the applicant was questioned by an inspector from the General Inspectorate for the Ministry of Justice. Subsequently, in February 1994, he was questioned by Principal State Counsel at the Court of Cassation.
11. In June 1994 he was summoned to appear before the disciplinary section of the National Council of the Judiciary. He was accused of having undermined the prestige of the judiciary by committing a serious breach of his duties, and thus being unworthy of the trust that must be had in a judge.
In his address, counsel for the applicant referred to a decision of the same section, given some ten years earlier, which drew a distinction between secret associations – of which judges were forbidden from being members – and discreet associations. Counsel for the applicant also noted that the guidelines of the National Council of the Judiciary, which stated that judicial office was incompatible with membership of the Freemasons, had been adopted during the summer of 1993, which was one year after the applicant had left the organisation of his own accord.
At the end of the proceedings the disciplinary section found that the applicant had breached Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 (“the 1946 decree”) and gave him a warning.
12. The applicant appealed on points of law to the Court of Cassation, which examined the case in plenary session on 13 June 1996. It dismissed the appeal in a judgment of 10 December 1996.
13. On 17 May 2000 the Fourth Committee of the National Council of the Judiciary indicated again (having already made a similar recommendation on an unknown date) that it was not in favour of the applicant’s promotion – for which the requisite conditions had been fulfilled since 17 October 1997 – in view of the disciplinary sanction that had been imposed on him.
14. The particular provisions of the Constitution referred to by the Government are the following:
“All citizens shall have the duty to be loyal to the Republic and to comply with the Constitution and the laws.
Citizens to whom public offices are entrusted shall perform them with discipline and honour, and take an oath where it is required by law.”
“Public officials shall be at the exclusive service of the nation.
If they are members of Parliament they shall be promoted only by seniority.
The right to become members of political parties may be limited by law in the case of members of the judiciary, professional members of the armed forces on active duty, police officials and officers, and diplomatic and consular representatives abroad.”
“Reasons shall be stated for all judicial decisions.
An appeal on points of law to the Court of Cassation for a breach of the law shall always be allowed against sentences and measures concerning personal freedom delivered by the ordinary or special courts. The provision may be waived only in the case of sentences pronounced by military courts in time of war.
Appeals to the Court of Cassation against decisions of the Consiglio di Stato and the Court of Audit shall be allowed only on grounds inherent to jurisdiction.”
15. Under Article 18 of Royal Legislative Decree no. 511 of 31 May 1946, any judge who “fails to fulfil his duties or behaves, in or outside the office, in a manner unworthy of the trust and consideration which he must enjoy” will incur a disciplinary sanction.
16. Being called upon to judge the constitutionality of Article 18 of the 1946 decree with regard to Article 25 § 2 of the Constitution, the Constitutional Court ruled that, in disciplinary proceedings against judges, the principle of lawfulness applied as a fundamental requirement of the rule of law and was a necessary consequence of the role conferred on the judiciary by the Constitution (judgment no. 100 of 8 June 1981, § 4).
However, with regard to the fact that Article 18 did not specify the types of conduct which might be regarded as unlawful, the Constitutional Court pointed out that it was not possible to give examples of every type of conduct which might undermine the values guaranteed by that provision: trust and consideration which a judge must enjoy and the prestige of the judiciary. Indeed, according to the Constitutional Court, those values constituted principles of professional conduct which could not be included in “pre-prepared guidelines because it [was] not possible to identify and classify every example of inappropriate conduct which might provoke a negative reaction in society” (ibid., § 5). The court subsequently reiterated that the earlier laws governing the same subject matter had included a provision of general scope alongside the provisions penalising specific conduct, that the proposals for reform in this field had always been worded in general terms and that the same was true for other professional categories. It concluded that “the provisions in this area [could] not but be of general scope because a specific directive would have the effect of legitimising conduct which had not been foreseen, but nonetheless attracted society’s opprobrium”. It added that those considerations justified the wide scope of the rule and the wide margin of appreciation conferred on a body which, acting within the guarantees inherent in any judicial procedure, was – by virtue of its composition – particularly well-qualified to judge whether the conduct considered in each case did or did not undermine the protected values (ibid., § 5).
The Constitutional Court stated, lastly, that this interpretation accorded with its case-law on the subject of lawfulness (ibid., § 6).
17. Law no. 17 of 25 January 1982 on the implementing provisions of Article 18 (right of association) of the Constitution concerning secret associations and the dissolution of the association called P2 provides that membership of a secret association is a criminal offence (section 2). With regard to civil servants, section 4 provides that disciplinary proceedings must also be brought against them before a special committee constituted according to very precise rules. However, in respect of judges of the judicial, administrative and military courts, jurisdiction remains vested in the respective disciplinary bodies.
18. On 22 March 1990 the National Council of the Judiciary, which had convened following a message from the Head of State – who is its president – to discuss the incompatibility between the exercise of judicial functions and membership of the Freemasons, passed guidelines. The minutes (discussion and text of the guidelines) of that meeting were published in the Official Bulletin (Verbali consiliari, pp. 89-129) and sent to the presidents of the Republic, Senate and Chamber of Deputies.
According to those guidelines, “judges’ membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment, by solemn oaths, of bonds such as those required by Masonic lodges, raises delicate problems as regards observance of the values enshrined in the Italian Constitution”.
The National Council of the Judiciary added that it was “evidently [within its] powers to ensure compliance with the fundamental principle of Article 101 of the Constitution, according to which ‘judges are beholden only to the law’ ”. In its words, “this scrutiny include[d] ... thorough care to ensure that, in the exercise of his functions, every judge respect[ed] – and appear[ed] to respect – the principle of being beholden to the law alone”.
The National Council of the Judiciary subsequently referred to a judgment of 7 May 1981 of the Constitutional Court in which the court had undertaken a balancing exercise between judges’ freedom of thought and their obligation to be impartial and independent.
It added: “it has to be stressed that among the types of conduct of a judge to be taken into consideration for the requirement of the exercise of the administrative activity peculiar to the Council, there is also, beyond the limit laid down by Law no. 17 of 1982, the acceptance of constraints which (a) are superimposed on the obligation of loyalty to the Constitution and of impartial and independent exercise of judicial activity and (b) undermine the confidence of citizens in the judiciary by causing it to lose its credibility”.
Lastly, the National Council of the Judiciary considered it “necessary to suggest to the Minister of Pardons and Justice that it might be advisable to consider including among the restrictions on judges’ rights of association reference to all associations which – for their organisation and ends – impose particularly strong bonds of hierarchy and solidarity on their members”.
19. On 14 July 1993 the National Council of the Judiciary passed further guidelines stating that the exercise of judicial functions was incompatible with membership of the Freemasons.
VIOLATED_ARTICLES: 11
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-97174
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KING v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The applicant, Mr Anthony King, is a British national who was born in 1966. He is currently detained at HMP Wandsworth. He was represented before the Court by Mr D. Mladenovic, a lawyer practising in London with Kaim Todner LLP. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 December 2003 the Government of Australia issued two warrants of arrest against the applicant seeking the applicant’s extradition on four charges of conspiracy to supply ecstasy and conspiracy to possess ecstasy with intent to supply. He was accused of being a member of an international gang engaged in a conspiracy to import large quantities of ecstasy into Australia in 2003. The ecstasy intercepted by the Australian authorities as part of their investigation amounted to over 164,000 tablets weighing 31 kg with a street value of 11.4 million Australian dollars.
3. On 17 December 2003 the applicant was arrested under the extradition request at his home in the United Kingdom. On 15 November 2004 a District Judge sitting at Bow Street Magistrates’ Court found that there was a case to answer on all four charges and committed the applicant to await the decision of the Secretary of State.
4. The applicant asked the Secretary of State to refuse to order his return to Australia under section 12 of the Extradition Act 1989. He claimed his involvement in the conspiracy was under duress; if extradited he would be unable to obtain the attendance and examination of witnesses who would give evidence to this effect under the same conditions as witnesses against him, in breach of Article 6 § 3(d) of the Convention. He maintained that he could be prosecuted in the United Kingdom for conspiring to export ecstasy and that if convicted in Australia he would inevitably receive a life sentence with, probably, no right of parole, which would be manifestly excessive. He also argued his extradition would be a disproportionate interference with his family life in the United Kingdom, which consisted of a wife, two children (born in 1998 and 2004) and a mother who was in poor health.
5. On 4 May 2005, while the Secretary of State was considering the applicant’s representations, the Attorney-General’s Department of the Australian Government provided the following information on the applicant’s likely sentence:
“While it is possible, given the seriousness of the offences, that Mr King may receive a sentence of life imprisonment, the sentencing Court is required to set a nonparole period unless, having regard to the nature and circumstances of the offence and to the antecedents of the person, the Court is satisfied that it is not appropriate to fix a non-parole period. It would be highly unusual for the Court not to fix a nonparole period.
The sentence imposed will depend upon the findings of the Court in relation to matters such as the type and amount of narcotics involved, the role of the defendant in the importation and other particular distinguishing factors. The sentence imposed will also depend upon whether there is a plea of guilty or not guilty and whether any assistance has been provided by the defendant.
Comparative sentences imposed in [New South Wales] over the last two years for offences of importation of a commercial quantity of narcotics consisting of MDMA [ecstasy], heroin or cocaine, where the quantity consisted of more than 10 kilograms and a plea of not guilty entered shows head sentences in the range of 15 years to life imprisonment with non-parole period in the range 11 years to 25 years. The maximum penalty of life imprisonment is, of course, usually reserved for the most serious offences.”
6. On 16 August 2005 the Secretary of State ordered the applicant’s extradition to Australia. In reply to the complaint about the likely imposition of a life sentence in the event of conviction, it was noted that it would be highly unusual for Australian courts not to fix a non-parole period, and, in any event, it would not be unjust or oppressive to return the applicant to Australia purely on the basis of the sentence he could receive if convicted of serious criminal offences. As to the argument that the applicant would be unable to plead duress in Australia, no evidence had been submitted to substantiate the claims of intimidation of the applicant and his family or that these mattes were reported to the police. The Australian authorities had confirmed that should any of the applicant’s witnesses be subjected to threats, appropriate action would be taken by the Australian police. They also advised that it was open to the applicant to apply for a suppression order in relation to the names of any witnesses who feared for their safety. If his witnesses were unable or unwilling to attend trial in Australia he could apply to the Australian courts for evidence to be given via video link. It was also possible for evidence not requiring crossexamination to be submitted in the form of a written statement. On this basis, the Secretary of State was satisfied that there was sufficient provision to allow the applicant’s witnesses to give evidence to the Australian courts and there would be no breach of his rights under Article 6 § 3 (d). As to the Article 8 complaint the applicant’s family circumstances were not so exceptional as to engage this provision. In addition, the United Kingdom was obliged to fulfil its international obligations towards its extradition partner. The applicant’s co-accused had already been tried in Australia, and, as such, it would not be unreasonable for the Australian authorities to expect related trials to be conducted in the same jurisdiction.
7. The applicant then made further representations, arguing that there would be a further breach of Article 6 since he would not obtain legal aid in Australia. He renewed his representations on Article 8 and also claimed that the Australian provisions governing the transfer of prisoners were discriminatory and were applied inconsistently and arbitrarily.
8. These further representations were rejected by the Secretary of State on 30 June 2006. As to the legal aid complaint the Australian authorities had confirmed that persons charged with serious criminal offences would normally be granted legal aid if their means were insufficient to engage private legal representatives. If the applicant were to be refused legal aid, he could make an application for a stay of the trial: the relevant Australian case-law (Dietrich v. the Queen (1992 177 CLR 292)) provided that where an accused charged with a serious offence, who through no fault on his or her part was unable to obtain legal representation, applied to the trial judge for an adjournment or stay then, in the absence of exceptional circumstances, the trial should be adjourned, postponed, or stayed, until legal representation was available. If an application that the trial be delayed was refused, and by reason of the lack of representation of the accused, the resulting trial was not a fair one, any conviction of the accused would have to be quashed by an appellate court for the reason that there had been a miscarriage of justice in that the accused had been convicted without a fair trial. Further, the Secretary of State noted that the applicant’s co-accused had been granted legal aid for their trials in Sydney.
9. As to the applicant’s contention concerning the Australian provisions for the transfer of sentenced prisoners, Australia was a party to the multilateral Council of Europe Convention on the Transfer of Sentenced Persons, which was incorporated into Australian domestic law. The applicant, if convicted, would be eligible to apply for transfer. The Secretary of State was satisfied that any application for transfer he might wish to make would receive appropriate and fair consideration. On Article 8, the Secretary of State again found the applicant’s circumstances were not so exceptional as to prevent extradition.
10. On 19 February 2007 the High Court refused permission for judicial review. It refused to interfere with the Secretary of State’s finding that Australia was the appropriate venue for the trial, especially when the alleged co-conspirators had been tried there. On the fairness of the trial in Australia, Lord Justice Latham (with whom Mr Justice Lloyd Jones agreed) accepted that the legal aid authorities in Australia would not fund the travel of defence witnesses but this was remedied by the fact that there was no bar on witnesses giving evidence by video link. He added:
“However more importantly, the evidence before this court simply does not raise a scintilla of a suggestion that the Australian judicial authorities will permit a trial to proceed if to do so would be unjust to the applicant. The case of Dietrich has been cited by the Australian authorities to the Secretary of State, who has considered it. As one would expect of Australian jurisprudence, it essentially says that if there is unfairness to a defendant arising out of difficulties from legal aid funding, the court will be astute to exercise such powers as it has to ensure that the trial is ultimately a fair trial or is stayed. I can therefore see no justification for concluding that there will be any breach of Article 6 in the Secretary of State’s decision to return the appellant to Australia.”
11. Four further letters from the Attorney-General’s Department of the Australian Government addressed the applicant’s likely sentence and general sentencing practice for drugs offences. The first, dated 18 November 2005, summarised the trial and sentencing of two co-accused of the applicant, Peter James Henry and Hugh Williams James Gravett. The Australian Government considered Henry to be one of the most senior members of the conspiracy in Australia. He received a “head sentence” of 18 years’ imprisonment and a non-parole period of 11 years. Gravett received a head sentence of 13 years’ imprisonment, with a non-parole period of 8 years and 8 months. The letter noted that it was the prosecution’s case that the applicant’s level of criminality was higher than that of Henry but any sentence would have to be proportionate to that imposed upon the co-accused. Subsequent developments in the cases of Henry and Gravett were set out in the third and fourth letters (see paragraph 13 below).
The first letter went on to state that there were only two people in Australia who had been sentenced to life imprisonment without a non-parole period; a third was re-sentenced to life imprisonment without a non-parole period after he breached a life sentence with a non-parole period on his release. The two who were sentenced to life imprisonment without a nonparole period at first instance were the principals in an organisation which had imported 389 kg of heroin. In other cases of the importation of narcotics where life imprisonment has been imposed, but a non-parole had been set, the highest non-parole period has been 30 years’ imprisonment, ranging down to 15 years.
12. The second letter, dated 1 May 2007 and provided in the context of the proceedings before this Court, reiterated that it was unlikely that the applicant would receive a life sentence with no non-parole period. Since his co-accused had already been sentenced, should the applicant be convicted a major concern for a sentencing judge would be that of parity of sentence with those of the co-accused. The letter noted that, in addition to Henry and Gravett, three other co-accused - Hands, Swansson and Alkarim - received head sentences of between 5 and 9 years’ imprisonment with non-parole periods of between 3 and 6 years. A fourth co-accused, Alchikh, the only one to plead guilty, received a discount of one third for that plea and for his assistance to the relevant law enforcement agencies. The discount reduced his head sentence from 18 years’ imprisonment to 12 years. His non-parole period was set at 7 years and 3 months. The United Kingdom Government in their observations (see below) indicated that another co-accused, Susan Saxby, had pleaded guilty and was sentenced to life imprisonment with a recommendation that she serve a minimum of thirteen years before being eligible for parole. The letter from the Australian Government stated that the applicant’s sentence would necessarily be higher than his coaccused to reflect his role as the principal organiser. However, any sentence imposed would not be so much higher as to be out of proportion with the sentences imposed on the co-accused. Should the applicant be convicted, the Crown would not submit to the court that a sentence of life imprisonment without parole was an appropriate sentencing option.
The letter also recorded that a person convicted and sentenced to a term of imprisonment could appeal as of right to the Court of Criminal Appeal and, thereafter, seek special leave to appeal to the High Court of Australia. A federal offender was also able to petition the Governor-General to exercise the Royal Prerogative of Mercy to remit or commute part of his sentence of imprisonment. It continues:
“It is likely that the Prerogative would only be exercised if there were circumstances that did not exist, or were unknown to the court, at the time the matter was dealt with, which warranted some mitigation of the sentence. A federal offender could also apply for early release on licence under section 19AP of the Crimes Act 1914. The Attorney-General or his Delegate may grant early release on licence where exceptional circumstances exist that warrant early release, for example assistance to law enforcement agencies or health problems that cannot be adequately managed within the prison system.”
13. The third and four letters, dated 4 and 17 August 2009, were also provided in the context of the proceedings before this Court. The letters stated that Gravett, Henry and Swansson had appealed to the Court of Criminal Appeal on the basis that their convictions were without jurisdictional foundation because of the form of the indictments. Their appeals were allowed. At the end of the retrial of Gravett and Henry in spring 2008, the jury was discharged because it was unable to reach a verdict. On 27 January 2009, Gravett pleaded guilty to a charge of attempting to possess a prohibited import. On 20 February 2009, he was sentenced to ten years’ imprisonment with a non-parole period of six years to date from 17 December 2003. Henry’s third trial commenced on 27 January 2009 and, on 19 February 2009, he pleaded guilty to one charge of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. The Crown accepted that plea of guilty in full satisfaction of all charges brought against him. On 14 August 2009 he was sentenced to 11 years’ imprisonment commencing on 17 December 2003 and expiring on 16 December 2014. The non-parole period was seven years commencing on 17 December 2003 and expiring on 16 December 2010. Swansson was also retried and, on 13 May 2009, found guilty of aiding, abetting, counselling or procuring an attempt to possess prohibited imports. He was sentenced to nine years’ imprisonment with a non-parole period of five years and five months to date from 8 July 2008.
14. At the relevant time, extradition arrangements between the United Kingdom and Australia were governed by the Extradition Act 1989. By section 12(1) of the Act, the Secretary of State has a general discretion to order a person’s surrender, including when it would, having regard to all the circumstances, be unjust or oppressive to return the person. The Secretary of State’s decision was open to challenge by way of judicial review, inter alia, on the basis that it was incompatible with a Convention right. This is by virtue of section 6(1) of the Human Rights Act 1998, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.