ITEMID: 001-58130
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF DALIA v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 8;No violation of Art. 3
TEXT: 7. Mrs Aïcha Dalia, an Algerian national, was born in Algeria, which was then French territory, on 4 August 1959. In 1976 or 1977, when she was 17 or 18, she arrived in France under the provisions governing entry and settlement of family members; her father had been living there since 1970 and her mother and four brothers and sisters had joined him in 1974. A child was born to the couple in France in 1977 and two others were born there in 1979 and 1984. After her parents divorced in 1978, the applicant remained with her mother. Three of her brothers and sisters had French nationality, the other four were residents, like her mother.
8. On 10 May 1985 the Nanterre tribunal de grande instance passed a sentence of twelve months’ immediate imprisonment on Mrs Dalia for offences against the dangerous drugs legislation (acquiring, possessing and selling heroin). Under Article L. 630-1, first paragraph, of the Public Health Code, it also made orders for her deportation and her permanent exclusion from French territory.
9. On 21 May 1985 the applicant appealed. In a judgment of 11 July 1985 the Versailles Court of Appeal quashed the impugned judgment on account of a procedural irregularity in the trial court’s composition and then, dealing with the merits of the case itself, passed the same sentence of a year’s immediate imprisonment on the applicant and made an order permanently excluding her from French territory.
10. On 13 July 1985 Mrs Dalia lodged an appeal on points of law against the Court of Appeal’s judgment but subsequently withdrew it. The President of the Criminal Division formally recorded the withdrawal of the appeal in an order of 17 February 1986.
11. Mrs Dalia was taken into custody on 13 October 1984 and released on 28 October 1985, when she rejoined her family at Nogent-sur-Oise.
12. On 8 April 1986 she married a French national.
13. Following a police summons, she was convicted on 29 July 1987, sentenced to three months’ imprisonment and excluded from France for one year for having remained there in spite of the permanent exclusion order.
On her release a six-day compulsory residence order was made in respect of her so that she could organise her departure herself, and on 14 August 1987 she left France for Algeria pursuant to the Versailles Court of Appeal’s judgment of 11 July 1985 (see paragraph 9 above). She was given accommodation there by an aunt.
She returned to France on 15 July 1989 with a visa valid for thirty days and stayed at her mother’s home at Nogent-sur-Oise with other members of her family. She asserts that she is still living there.
14. On 5 November 1989 the Senlis tribunal de grande instance granted the applicant and her husband a divorce. No child had been born of the marriage.
15. On 6 June 1990 Mrs Dalia gave birth to a boy, who was given the name of Karim and had French nationality as he had been born in France of a mother who had herself been born in a French département (see paragraph 7 above). She had parental responsibility for him as the father had not acknowledged the child.
16. Mrs Dalia asserts that she made three applications to have the permanent exclusion order lifted, the first being lodged in 1988 and refused on 3 March 1989 and the other two being registered on 4 May 1992 and 5 February 1994. According to the Government, the Versailles Court of Appeal received only the latter two.
17. On 4 May 1992 the applicant applied to lift the order permanently excluding her from French territory. She relied on Article L. 630-1, paragraph 2-2, of the Public Health Code, as amended by the Law of 31 December 1991 (see paragraph 26 below).
18. In a judgment of 26 November 1992 the Versailles Court of Appeal refused that application in the following terms:
“The conviction and sentence having become final by the date of commencement of the Law of 31 December 1991, the provisions of that Law, except in so far as they have the effect of making the application admissible on the basis of Article 55-1 of the Criminal Code, are purely indicatory as regards the applicant.
In the instant case the Court declines to grant the application.”
19. On 5 February 1994 Mrs Dalia lodged a fresh application to have the permanent exclusion order lifted.
20. In a judgment of 4 October 1994 the Versailles Court of Appeal held that the application was inadmissible, on the following grounds:
“Mrs Dalia alleged in support of her application that she arrived in France in 1976, that three of her brothers and sisters are French and two others are currently applying for naturalisation and that she is the mother of a French child born on 6 June 1990, in respect of whom she has parental responsibility.
Relying on these factors, her counsel submitted at the Court hearing that if section 28 bis of the Ordinance of 2 November 1945, as amended by Law no. 93-1027 of 24 August 1993 on immigration and the conditions of aliens’ entry into and residence in France, were strictly applied, it would entail a violation of Article 8 of the [European] Convention on Human Rights.
The above-mentioned Law provides that an application to have an exclusion order lifted can be made only if the foreign national is resident outside France, and that is a rule of procedure which admits of no exception.
Mrs Aïcha Dalia’s application must therefore be declared inadmissible.”
21. In a report drawn up for the Versailles Court of Appeal on 18 May 1994 a psychiatrist from the Creil Medical and Psychiatric Centre noted:
“Mrs Aïcha Dalia’s mental state requires long-term medical treatment. Separating her from her family would have disastrous consequences for her mental balance and might lead to serious psychological decompensation, which would have repercussions on her son Karim, who is currently 3 years old.”
22. In a medical certificate of 21 December 1994 intended for the Ministry of Justice the same doctor set out the following findings:
“Mrs Aïcha Dalia’s mental state requires long-term treatment.
Mrs Aïcha Dalia has received regular treatment at our centre since November 1990. Her condition has not improved, owing to the material and psychological insecurity in which she is living. Separation from her family would have disastrous consequences for her and for her small boy, aged 4, of French nationality, who lives with her.”
23. In a certificate drawn up for the Court on 4 June 1997 at the applicant’s request, the same doctor indicated:
“Mrs Dalia is still receiving regular treatment at the Creil Medical and Psychiatric Centre. Her psychological vulnerability is closely bound up with the stress and instability inherent in her social, legal and financial position.
Regularisation of her legal position would be a decisive factor for clinical improvement, but departure for Algeria would have serious effects on Mrs Dalia’s already precarious mental balance and also on that of her son, aged 6, who needs the emotional stability provided by his mother.”
24. In a report drawn up on 6 June 1997 a welfare assistant from the Creil Medical and Psychiatric Centre, where Mrs Dalia has been treated since 1990 stated:
“Mrs Dalia has no resources or State family benefit and is therefore supported entirely by her mother.
She has a small boy, Karim, born at Creil on 6 June 1990.
Karim is very attached to his mother. She is his only immediate relative who is present, and Mrs Dalia does everything to ensure that her little boy does not suffer from having no father.
Similarly, she is trying as hard as she can to protect him from the threat of separation or deportation to which their relationship is exposed. She is an attentive and responsible mother, who is aware of a child’s physical and, above all, emotional needs and she fulfils her maternal role.
In conclusion, Karim is an integrated, open child, and it would be a pity to allow him to remain under the threat of separation for much longer. Like all children, he needs security. His mother’s presence is essential to his balance and it is with her that he will be able to develop normally.”
25. At the material time Article L. 630-1 of the Public Health Code provided:
“... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory.
Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence.
...
Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.”
26. Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions:
“However, exclusion from French territory shall not be imposed on:
...
(2) a convicted alien who is the father or mother of a French child resident in France, on condition that he or she is vested with or shares parental responsibility for that child or actually provides for its needs;
...
Nor shall exclusion from French territory be imposed on a convicted alien who can prove either:
(1) that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years, or
(2) that he has been lawfully resident in France for more than ten years.
The provisions of the eight preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [toxic plants classified as drugs] or for conspiracy to commit those offences.
...
Exclusion from French territory shall of itself entail the convicted person's deportation, where necessary after the end of his prison sentence.”
27. Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992.
28. Section 28 bis of the Ordinance of 2 November 1945, as inserted by the Law of 24 August 1993 and amended by the Law of 30 December 1993, provides:
“An application to have an exclusion ordered lifted … that is made after the time allowed for an administrative appeal has expired may only be granted if the foreign national is resident outside France. This provision shall not, however, apply while the foreign national is serving an immediate custodial sentence in France or is the subject of a compulsory residence order…”
29. The first three subsections of section 12 bis of the Ordinance of 2 November 1945 as amended by the Law of 24 August 1993 were replaced by the following provisions by virtue of the Law of 24 April 1997:
“… Other than where the presence of the person concerned constitutes a threat to public order, a temporary residence permit shall be issued as of right:
…
(5) to an alien not living polygamously who is the father or mother of a French child under 16 resident in France, on condition that he or she actually provides for the child’s needs…”
30. Article 55-1 of the Criminal Code provides:
“…
… any person who has incurred a prohibition ... as an automatic consequence of a criminal conviction or on whom such a prohibition ... has been imposed by the convicting court in its judgment, ... may request the court which convicted him ... to lift the prohibition ..., in whole or in part, or vary its duration.
…”
31. In her application to the Commission of 3 November 1994 (no. 26102/95) Mrs Dalia alleged that returning her to Algeria would amount to treatment contrary to Article 3 of the Convention in respect both of her and of her child and that the Versailles Court of Appeal’s refusal of 4 October 1994 to allow her application to lift the order permanently excluding her from French territory infringed her right to respect for her private and family life as secured in Article 8 of the Convention. She also stated that when the Versailles Court of Appeal had considered the application she had made on 5 February 1994 to have the exclusion order lifted, it had not heard her case in accordance with Article 6 of the Convention.
32. On 17 May 1995, in a partial decision, the Commission (Second Chamber) declared the complaint based on Article 6 of the Convention inadmissible and adjourned the application as to the remainder. On 18 April 1996, in a final decision, the plenary Commission (in favour of which the Second Chamber had relinquished jurisdiction) declared the other two complaints admissible. In its report of 24 October 1996 (Article 31), it expressed the unanimous opinion that there had been no violation of Article 3 of the Convention and by twenty-one votes to nine the opinion that there had been no violation of Article 8. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment.
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-72888
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MELNYK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1954 and lives in the village of Bilashky, the Vinnitsa region of Ukraine.
5. In 2001 the applicant instituted proceedings in the Staromiskiy Local Court of Vinnitsa against her former employer – the “Vinnitska Kondyterska Fabryka” Open Joint Stock Company – to be reinstated in her position and to receive compensation.
6. On 12 November 2001 the court discontinued proceedings in the applicant’s case on the ground that she had failed to appear before the court.
7. On 27 February 2002 the Vinnitsa Court of Appeal upheld the ruling of 12 November 2001. On 26 April 2002 the applicant appealed in cassation.
8. On 29 April 2002 the Staromiskiy Local Court rejected the applicant’s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereinafter - “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only lodging her appeal on 26 April 2002. No reference was made in the decision to the actual deadline which had not been complied with.
9. On 9 September 2002 the Vinnitsa Court of Appeal upheld the ruling of 29 April 2002.
10. On 5 February 2003 the panel of three judges of the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the rulings of 29 April and 9 September 2002.
11. The first paragraph of Article 58 of the Constitution provides that laws and other normative legal acts have no retroactive force, except in cases where they mitigate or annul the responsibility of a person.
12. At the time of the second instance appellate decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appellate decision or within a year of the decision of the first instance court, if the latter decision was not appealed under the normal appellate procedure.
13. On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereinafter – “the Amendment Law”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one month time-limit for lodging a cassation application against the decision of an appellate court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82625
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BAH v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Adul Bah, claims to be a Sierra Leonean national who was born in 1980. At the time when the application was lodged he was held in detention in Soesterberg. He is represented before the Court by Mr P.A. Blaas, a lawyer practising in ‘s-Hertogenbosch. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered the Netherlands approximately two years before the events complained of. He lodged a request for asylum and was met with a refusal. He remained in the Netherlands as an illegal alien.
On 3 March 2004 the applicant was apprehended. An officer of the Aliens Police (Vreemdelingenpolitie), acting on behalf of the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie) and in accordance with Article 59 of the 2000 Aliens Act (Vreemdelingenwet), placed the applicant in aliens’ detention (vreemdelingenbewaring) for expulsion purposes on public order grounds, namely the suspicion that the applicant was seeking ways to evade expulsion as he had no identity papers, he had failed to leave the country within the time allowed him for that purpose, he had no fixed abode, was suspected of having committed a criminal act, had no adequate means of subsistence and was not lawfully staying in the Netherlands.
The Regional Court of The Hague was notified by the Minister of the detention order on 5 March 2004. In accordance with Article 94 of the 2000 Aliens Act, this counted as an automatic appeal.
This notification-appeal was heard before the Regional Court on 12 March 2004. On 18 March 2004 a single-judge Chamber of the Regional Court gave a decision dismissing the appeal. The decision noted that the applicant had relied on the European Court’s judgment in the case of Shamsa v. Poland (nos. 45355/99 and 45357/99, 27 November 2003), but held that, given the provisions of Article 94 of the 2000 Aliens Act, there was an adequate guarantee that the judge would take a speedy decision about the lawfulness of the applicant’s detention and order his release if his detention was found unlawful. Given the reasons on which it was based, the applicant’s placement in aliens detention was found justified, and it was further found that the Netherlands authorities were pursuing the applicant’s effective removal from the Netherlands with the required diligence, given that in the meantime the procedure for obtaining a laissez-passer from the Sierra Leonean authorities had been set in motion.
The applicant lodged an appeal against the decision of 18 March 2004 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) on 22 March 2004. Again relying on the Court’s Shamsa judgment, he only raised one complaint, namely that the Regional Court had unjustly failed to acknowledge that persons placed in aliens’ detention must – like persons detained in the context of criminal proceedings – be heard promptly, that is no later than three days and fifteen hours, before an independent tribunal. As he had only been heard after ten days, the Regional Court should have found this delay too long and, consequently, should have ordered his release.
On 13 May 2004, following a hearing held on 14 April 2004, the Administrative Jurisdiction Division dismissed the further appeal and upheld the Regional Court’s decision. This ruling, in so far as relevant, reads:
“The appellant has been placed in aliens’ detention for expulsion purposes, in accordance with Article 59 § 1 (a) of the 2000 Aliens Act. Therefore and on a statutory basis, an expulsion procedure within the meaning of Article 5 § 1 (f) of the Convention was pending against him. Pursuant to Article 94 §§ 1 and 2 of the 2000 Aliens Act, the placement in aliens’ detention at issue has been submitted for examination before the Regional Court within a delay of ten days.
The judgment of the European Court of Human Rights [in the case of Shamsa v. Poland] of 27 November 2003, invoked by the [appellant], concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending, for which continued detention there was no legal basis. Consequently, the detention had lost its lawful character and thus did not fall within the scope of one of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in Article 5 § 1 of the Convention. In this light, the Administrative Jurisdiction Division understands the judgment and in particular the reasoning set out in paragraph 59 in the sense that the Court – in assessing such detention – incorporates the rationale of Article 5 taken as a whole and, in that context, also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [Article 5 of the Convention]. Noting this as well as the [decisions on admissibility taken by] the Court in the case Leaf v. Italy [no. 72794/01, 27 November 2003] and Vikulov and Others v. Latvia [16870/03, 25 March 2004], the Administrative Jurisdiction Division is of the opinion that the Court did not have the intention to consider Article 5 § 3 applicable by analogy to the detention of aliens in accordance with [Article 5 § 1 (f) of the Convention], which would also be at variance with the wording of [Article 5 § 3 of the Convention]. In this connection the Administrative Jurisdiction Division also finds of relevance that the Court, in its [decision on admissibility] in the case of Tekdemir v. the Netherlands (no. 46860/99, 1 October 2002) found that there was no reason for holding that there was a violation of Article 5 § 4 of the Convention, as the alien concerned who had been placed in aliens’ detention under the Aliens Act [as in force until 1 April 2001] could at any point in time challenge the lawfulness of [that] detention before the judge who should determine [this issue] speedily. The Court did not conduct an additional examination of the matter under [Article 5 § 3 of the Convention]. In accordance with Article 94 § 1 and Article 96 §§ 1 and 5 of the 2000 Aliens Act an alien can also at present file an appeal at any point in time against a decision imposing deprivation of liberty.
The Administrative Jurisdiction Division therefore agrees with the Regional Court that the applicant’s reliance on [the Court’s Shamsa judgment] fails...”
This ruling was published in the Immigration Law Reports (Jurisprudentie Vreemdelingenrecht; “JV”) 2004/290.
Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet; “the 1965 Aliens Act”). Further rules were set out in the 1966 Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act.
On 1 April 2001, the 1965 Aliens Act and the pertaining regulations were replaced by the 2000 Aliens Act, the 2000 Aliens Decree, the 2000 Regulation on Aliens and the 2000 Aliens Act Implementation Guidelines. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.
At the time of the events complained of, the 2000 Aliens Act, as relevant to the case, provided as follows:
“1. If necessary in the interests of public order or national security so requires, [the competent Minister] may, for the purpose of expulsion (uitzetting), order the detention of an alien who:
(a) is not lawfully resident; ...”
“In deviation from Article 37 § 1 of the Act on the Council of State (Wet op de Raad van State), no appeal lies against a decision of the Regional Court ...:
a. about a decision or act based on ... [Article 59 of the 2000 Aliens Act] ...”
“1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in Article ... 59 ... [of the 2000 Aliens Act] no later than the third day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages.
2. The Regional Court shall immediately fix the time of a hearing. The hearing shall take place no later than the seventh day after the receipt of the written statement of appeal or the notification. ... In deviation from Article 8:42 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged.
3. The Regional Court shall give judgment orally or in writing. A written judgment shall be given within seven days of the conclusion of the hearing. In deviation from Article 8:66 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged.
4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered.”
Article 95
“1. In deviation from Article 84 under a., a ruling given by the Regional Court as referred to in Article 94 § 3 can be appealed before the Administrative Jurisdiction Division of the Council of State. ...”
Article 96
“1. In case the Regional Court has rejected as unfounded an appeal within the meaning of Article 94 and the deprivation of liberty continues, Our Minister shall notify the Regional Court of the continuation of the deprivation of liberty no later than four weeks after the ruling within the meaning of Article 94 has been given, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty. ”
Article 94 was amended with effect from 1 September 2004. It now requires the Regional Court to be notified of the detention decision within twenty-eight days after its issuance unless the alien has lodged an appeal first, and the hearing of the appeal must take place no later than fourteen days after the Regional Court has received the written statement of appeal or the Minister’s notification. This amendment meant in practice a revival of the legal situation that existed before 1 April 2001 in respect of these two time-limits under the former 1965 Aliens Act and pertaining regulations (for further details, see Tekdemir v. the Netherlands (dec.), nos. 46860/99 and 49823/99, 1 October 2002, under “Relevant domestic law and practice”).
Article 69 § 3 of the 2000 Aliens Act stipulates that there is no time-limit for filing an appeal within the meaning of Articles 94 and 96 of the 2000 Aliens Act and that an appeal referred to in Article 95 must be filed within one week. Accordingly, a person placed in aliens’ detention can in principle file as many appeals against this placement as he or she sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention. Pursuant to Article 84 of the 2000 Aliens Act, no appeal to the Administrative Jurisdiction Division lies against a decision by the Regional Court on such a subsequent appeal (Administrative Jurisdiction Division, 1 November 2006, case no. 200607626/1). The hearing and determination of such a subsequent appeal are subject to the same mandatory time-limits as those for a first appeal (Regional Court of The Hague sitting in Groningen, 19 June 2006, case no. AWB 06/22632).
According to a ruling given by the Administrative Jurisdiction Division on 11 February 2005 (JV 2005/172), the time-limit set out in Article 94 § 2 of the 2000 Act is of a strict mandatory nature. In the event that this time-limit has not been respected, the placement in aliens’ detention becomes unlawful on the day following the day on which this time-limit expired.
As there is no statutory fixed maximum duration of a placement in aliens’ detention for expulsion purposes, an alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time provided there are reasonable prospects for expulsion within the foreseeable future. However, it has been established in domestic caselaw that the interest of an alien to be released from aliens’ detention increases with the passage of time.
Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later when an exclusion order (ongewenstverklaring) has been imposed or where the alien concerned frustrates the determination of his identity or nationality, and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his or her control (see, Legal Uniformity Division (Rechtseenheidskamer) of the Regional Court of the Hague, case no. AWB 97/4849, 21 August 1997; and the Regional Court of The Hague sitting in Groningen, case no. AWB 06/22632, 19 June 2006).


ITEMID: 001-103112
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MUSTAFA (ABU HAMZA) v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 1. The applicant is Mr Mustafa Kamal Mustafa, known more commonly as Abu Hamza. He was born in 1958. The applicant is currently detained at HMP Belmarsh. He was represented before the Court by Ms M. Arani, a lawyer practising in Middlesex.
2. The United States Government have requested his extradition to stand trial on charges related to international terrorism. The extradition request is the subject of a separate application to this Court (see Babar Ahmad and others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, 6 July 2010). The present application concerns only his trial and conviction in the United Kingdom for separate offences.
3.
4. The applicant has lived in the United Kingdom since 1979. After initially working as a civil engineer, he started preaching Islam and teaching the Qur'an part-time. He began working full-time as a preacher in 1996 and from 1997-2003 was Imam at the Finsbury Park Mosque, London. Between 1996 and 2000 he delivered a number of sermons and speeches which later formed the basis for charges of soliciting to murder, using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, possessing a document or recording with the same intent. He was also charged with possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism (possession of the eleven volume Encyclopaedia of Afghani Jihad). Those charges are set out in part 2 below.
5. The applicant's speeches, sermons and other activities brought him to the attention of the United Kingdom Security Service. Six meetings took place between the applicant and officials of the Security Service between May 1997 and November 1998. Notes of those meetings were disclosed to the applicant and are before the Court in redacted form. At the first meeting, on 28 May 1997, in response to comments he made about terrorism in France, the applicant was told he was walking a “dangerous and delicate tightrope” and incitement to terrorism or other violence was “fraught with peril”. That warning was repeated at the second and third meetings on 9 June and 14 July 1997. At the fourth meeting, on 1 October 1997, the applicant was again told that he had been walking a dangerous tightrope and had come close to being culpable for incitement to violence. He was also told that, if he overstepped the mark, he would undoubtedly come to the attention of the authorities. A similar warning was delivered at the sixth meeting on 24 September 1998. During the same period a series of meetings took place between the applicant and the Metropolitan Police Special Branch. The applicant maintains that, at those meetings, it was never suggested that he would be prosecuted for any sermons he had given.
6. The applicant was arrested and interviewed between 15 and 18 March 1999 by the Metropolitan Police as part of an inquiry into the taking of sixteen hostages in Yemen in December 1998. He was released without charge. When he was arrested material, including videotapes of his sermons, cassette tapes and the Encyclopaedia of Afghani Jihad were seized and analysed. The materials were subsequently returned to him.
7. In 2002 the applicant's funds were frozen by the Bank of England and he was also designated as a global terrorist by the President of the United States. The Charity Commission for England and Wales also suspended him from his post as Imam at Finsbury Park Mosque.
8. In January 2003, Finsbury Park Mosque was raided by police. The raid was widely reported in the United Kingdom media. On 4 April 2003, the Secretary for the Home Department notified the applicant of his intention to remove his British citizenship on the grounds that he was satisfied that the applicant had provided support and advice to terrorist groups and individuals; encouraged and supported the participation of individuals in jihad; provided, through the mosque, a centre for extremism; and promoted anti-Western sentiment and violence through his preaching. This too was extensively reported.
9. On 21 May 2004 the United States Government requested the applicant's extradition inter alia in relation to his alleged role in the Yemeni kidnapping. The full details of the charges he faces are set out in the Court's decision in Babar Ahmad and others, cited above, §§ 7–9.
10. The extradition proceedings were adjourned when, on 19 October 2004, the applicant was charged by the Crown Prosecution Service with fifteen offences. These were:
(i) nine counts of soliciting to murder, contrary to section 4 of the Offences Against the Person Act 1861;
(ii) four counts of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred contrary to section 18(1) of the Public Order Act 1986;
(iii) one count of possessing threatening, abusive or insulting recordings of sound with intent to stir up racial hatred contrary to section 23(1) of the Public Order Act 1986; and
(iv) one count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58 of the Terrorism Act 2000 (the Encyclopaedia of Afghani Jihad).
The nine counts of soliciting to murder and the four counts of stirring up racial hatred related to speeches and sermons given by the applicant at Finsbury Park Mosque and other locations between 1997 and 2000.
11. When the trial began in July 2005, the defence applied for the prosecution to be stayed as an abuse of process. It was argued that, as a result of his dealings with the Security Service and Metropolitan Police, the applicant had either been given assurances that he would not be prosecuted or left with the legitimate expectation that he would not be. This, he argued, was reinforced by the decision to revoke his citizenship and allow his extradition to the United States. The applicant further argued that, as a result of these actions of the United States and United Kingdom Governments, the publicity surrounding him had grown to such an extent that it would be impossible for him to receive a fair trial by jury. It was also argued that the delay made it impossible for him to defend himself.
12. The trial judge, Mr Justice Hughes, refused the application on 13 July 2005. Having reviewed the notes of the discussions between the applicant and the Security Service, the trial judge held that it was quite clear that the discussions did not amount to an assurance, express or implied, nor did they give rise to a legitimate expectation that the applicant would not be prosecuted. The same was true for meetings between the applicant and the Metropolitan Police. The warnings about walking a tightrope did not arise in the context of any investigation into the applicant or from any consideration of possible prosecution; they were not assurances that the applicant was committing no offence but non-legal warnings by a Security Service officer whose concern had nothing to do with possible prosecution. There was also no evidence from the applicant that he regarded these conversations as having given him any kind of assurance that he was safe from prosecution, nor that he relied on them in deciding how to conduct himself.
13. The trial judge also found that the decisions to revoke the applicant's citizenship and accede to his extradition did not make the decision to prosecute him an abuse of process: there was no reason why revocation of citizenship and prosecution could not be done simultaneously, nor was there anything unlawful in prosecuting someone who was subject to an extradition request.
14. The trial judge found that, by 2000, the police would have had almost all the evidence that the prosecution was now based upon and, in the absence of any explanation for the passage of time, some criticism could be made for the delay in bringing the prosecution. However, it was not an affront to justice to bring the prosecution: provided that the trial could be fair it was in the public interest that it should take place. Since the prosecution case consisted entirely of recordings of what the applicant had said in his speeches and sermons, and the applicant's defence was that there was theological justification for what he had said, there was no danger that the applicant would be unable to mount his defence.
15. The trial judge also rejected the applicant's submission that the adverse publicity to which he had been subjected would prejudice any jury. It was acknowledged that the media's coverage of the applicant had amounted to a sustained campaign against the applicant and, before the prosecution had been brought, various public figures had made adverse statements about him. However, the trial judge was satisfied that, with a proper direction, a jury would be able to try the applicant impartially. He found:
“Almost universally, [juries] approach their task and their oath with conspicuous conscientiousness....Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified ... They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not.”
16. However, since the ruling was given just after the London bombings of 7 July 2005, and there had been recent references in the media to the applicant, the trial judge acceded to an application to defer the trial until the end of the year. He observed:
There will by then have been more than a year since the most intense of the publicity.
“It remains likely, as it seems to me, that any trial will have to be approached on the basis that the jurors will, or certainly may, remain generally aware that this is a defendant who was the object of intense publicity and of a campaign against him, although I doubt they will recall, as a lawyer interested in the case might recall, the detail of specific allegations such, for example, as those made at the time of the extradition request in mid-summer of 2004.
That will mean that the jury must be warned carefully about how they are to approach the case. What exactly needs to be said to them will fall to be considered after submissions by the parties and at the time and, particularly, in the light of any submissions made on behalf of the defendant, but I record now that I would expect it to go significantly beyond a formulaic injunction to put out of their minds anything they have read in the papers. It seems to me likely that it will need to involve a careful explanation of the difference between their task in the sifting and evaluation of the evidence, on the one hand, and indiscriminate hostile labelling of a suspect by public commentators, on the other hand.”
The trial judge also gave a general warning that any further references to the applicant and terrorism by the media would risk a finding of contempt of court.
17. The trial in fact took place in January and February 2006. On 9 January 2006, the eve of the trial, the trial judge rejected a renewed application for a stay. This was based on further media coverage of the London bombings that had included some references to the applicant as someone who was likely to have contributed to the willingness of some to make such attacks. Adopting the reasoning of his earlier ruling, the trial judge held that this publicity would not prevent the jury from objectively considering the allegations made against the applicant. A further warning was given to the media as to the risk of a finding of contempt of court. The trial judge also indicated that he would refer certain articles to the AttorneyGeneral for consideration as to whether any past contempt of court had or had not been committed.
18. At the conclusion of the trial the trial judge's summing up, which lasted two days, contained the following direction to the jury:
“I warned you at the beginning [of the trial] to ignore anything that anyone has said about this defendant in the press before the trial or during it. You may be aware that over the years there was a campaign in some sections of the press against [the applicant]. Whether it was fair or unfair comment about his opinions, whether it was informed or uninformed comment about him, is simply irrelevant. No one at that time was undertaking the task which you have been given, which is to sift the evidence, to look at the speeches, evaluate the evidence and say whether he has committed these offences or not. It may be quite easy, you may think, to attach a label to somebody in a newspaper article, but it is a different exercise from the task which you have of examining the evidence to see whether he has committed particular offences. The only thing that matters to any of us is whether the evidence demonstrates that he has or has not proved that he committed these offences. So be careful not to be affected, again even subconsciously, of intensive criticism of him. Concentrate on the evidence, try him on that, and make your own decision.”
19. On 7 February 2006, after they had retired to consider their verdict, the jury were given a further direction by the trial judge in response to further adverse publicity. That publicity included a comment made by a participant on the BBC's Newsnight programme that the applicant should be deported and other media references to a connection between Zacharia Moussaoui (who was at that point about to be tried in the United States for his role in the attacks of 11 September 2001) and Finsbury Park Mosque. At that time there had also been extensive coverage of the international reaction to the publication of cartoons in Denmark of the Prophet Mohammed. This adverse publicity also prompted the defence to renew its application for the proceedings to be stayed. The trial judge refused that application, finding that there was no risk that the jury would be swayed from reaching its verdict on the basis of the evidence presented at trial. On the contrary, the indications at that stage were that the jury were working their way through the considerable volume of evidence that was before them.
20. Later that day the jury found the applicant guilty of six counts of soliciting to murder; three counts of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred; one count of possessing threatening, abusive or insulting recordings of sound with intent to stir up racial hatred; and one count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism. They acquitted the applicant of three counts of soliciting to murder and one count of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred.
21. The applicant was sentenced to seven years' imprisonment.
22. The applicant appealed against his conviction to the Court of Appeal, which dismissed the appeal on 28 November 2006 ([2006] EWCA Crim 2918).
23. The Court of Appeal found that the trial judge had been correct to refuse the defence applications to have the proceedings stayed as an abuse of process. Nothing that had been done by the authorities could be treated as an assurance that he would not be prosecuted. There was also no basis for inferring that the Secretary of State, in deciding to deprive the applicant of his citizenship, had taken a personal policy decision that the applicant should not be prosecuted and it could not be taken as an assurance of nonprosecution. In respect of the police's decision to return the applicant's cassettes and encyclopaedia after his arrest in 1999 the Court of Appeal observed:
“It would have been open to the police to initiate a prosecution in 1999 in relation to the possession of the cassettes and the Encyclopaedia that were seized, albeit that the charge in the case of the latter would have had to have been brought under an earlier statute. The fact that they did not do so could not, however, be taken as an assurance, let alone an unequivocal assurance, that they would not do so in the future. It is significant in this context that these materials were seized, not in the course of some general investigation, but in an investigation aimed specifically at the possibility that the appellant was implicated in the events in the Yemen. The appellant was aware of this.
It is not clear why, in 1999, the police did not attach the significance to the appellant's speeches and possession of cassettes and the Encyclopaedia that they, and the Crown Prosecution Service, were to give them in 2004. The judge remarked that, in the absence of any explanation for the passage of time, the conduct of the prosecution was vulnerable to some criticism for the delay since 2000 in bringing charges. We agree. But any shortcomings on the part of those responsible for the prosecution in this respect could not be treated as an assurance that the appellant was not in breach of the law nor that, if he was in breach of the law, this would not give rise to a prosecution.
There is no reason to conclude that the appellant placed any reliance on the reaction, or lack of reaction, of the police to the cassettes and the Encyclopaedia when deciding to retain them in his possession. He was simply continuing a course of conduct that had commenced before the police had intervened.”
24. The applicant also submitted that because of the delay in bringing the prosecution, events had occurred before his trial that prejudiced the holding of a fair trial. The Court of Appeal considered that this submission was most appropriately considered in the context of the applicant's further submission that his trial had been prejudiced by the adverse publicity he had received. In respect of that submission, the Court of Appeal considered that the trial judge had been correct to rule that any adverse publicity could be cured by an appropriate direction to the jury. The Court of Appeal found:
“The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial. The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge. Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties.
In the present case, the judge rejected on three occasions an application for a stay on the ground of abuse of process. The first application was in the process of being heard when the London bombings took place on 7 July 2005. It had been intended that the trial should proceed at once if the application failed. The judge held that a fair trial would be possible but that, because of the prejudice that might be caused by the bombings and attendant publicity, the trial should be adjourned until January. On 9 January, on the eve of the trial the judge again rejected a stay application, holding that a fair trial was possible. The final application was made on 7 February, because of further adverse publicity after the jury had retired. Once again the judge rejected the application. It remains to consider whether he was correct to conclude, on each occasion, that a fair trial was possible.
[Counsel for the applicant] does not rely simply on adverse media publicity when arguing that a fair trial was impossible. He relies upon changes in attitude and public perception in relation to terrorism that followed first the destruction of the World Trade Centre on 11 September 2001 and subsequently the London bombings on 7 July 2005. The critical issues before the jury were whether the appellant's speeches constituted incitements to kill and whether he intended to incite to kill and to stir up racial hatred. [Counsel for the applicant] argues that after 11 September and 7 July it was impossible for the jury fairly to judge the appellant's utterances in the context in which they were made. The adverse publicity compounded the jury's difficulties, quite apart from the fact that it itself made a fair trial impossible.
...
We have no need to deal separately with the rulings given by the judge on the second and third occasion that he dealt with stay applications, for [Counsel for the applicant] has not contended that this appeal should succeed in respect of either of these rulings if it fails in respect of the first, and most substantial, ruling. The question remaining for this court is whether the judge was correct to conclude that, with his assistance, the jury would be able to try the issues fairly without being prejudiced or distracted by the events that had occurred since 2000 and by the media coverage of those events.
The judge was correct to conclude that the adverse media publicity attendant upon the events that had occurred between 2000 and the bringing of charges against the appellant in October 2004 had put at risk the fairness of his trial. The challenge posed to the judge of taking appropriate steps to neutralise the effect of these matters by appropriate directions and guidance in the course of his summing up was considerable. The task was an exacting one. The judge was confident that he would be able to discharge it. We have concluded that his assessment of the position was correct. The circumstances did not require the judge to stay the prosecution on the ground that there could not be a fair trial.
We have read the judge's summing up to the jury with admiration. As we have observed, [Counsel for the applicant] has made no criticism of it. The defence had been permitted to call an expert witness to provide the context in which the various speeches had been made. The judge reminded the jury of this evidence. He set the various speeches in their context and drew attention to the issues that the jury had to resolve with pellucid clarity. He gave a careful and skilful direction in relation to media coverage.
There is no reason to believe that the jury were not able to consider and resolve the relevant issues objectively and impartially. It is not without significance that they recorded verdicts of not guilty on [four of the counts in the indictment]. [Counsel for the applicant] submits that the conviction on some counts but not on others reflected a determination on the part of the jury that the appellant should not escape wholly unpunished. We can see no basis for this submission. The jury's verdicts appear to us to reflect a rational differentiation between the stronger and the weaker counts.
For the reasons that we have given, this appeal is dismissed.”
25. The Court of Appeal certified two points of law of general public importance for consideration by the House of Lords but refused leave to appeal to the House of Lords. The applicant then petitioned the House of Lords for leave to appeal. This was refused by the House of Lords on 29 January 2007.
26. English criminal courts have the power at common law to stay proceedings indefinitely if a prosecution amounts to an abuse of the process of the court. This was defined in Hui Chi-Ming v. R [1992] 1 AC 34, PC as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceedings”. This test will be met either: (i) where the court concludes that the defendant cannot receive a fair trial; or (ii) where the court concludes that it would be unfair for the defendant to be tried (R v. Beckford [1996] 1 Cr App R 94). The second category was considered in R v. Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 where the accused had been brought to the United Kingdom unlawfully by deliberate misconduct by investigators. In finding that to be an abuse of process, Lord Griffiths stated:
“If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”
There will be circumstances in which a stay should be granted even though a fair trial could be conducted, for example where the court is faced with unlawful acts by police or prosecutors which are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court (see R v. Grant [2005] 2 Cr App R 28). However, a stay will not be granted where the trial process is itself equipped to deal with the matters complained of such as through the regulation of the admissibility of evidence (R (Ebrahim) v. Feltham Magistrates Court; Mouat v. DPP [2001] 2 Cr App R 23).
27. A stay may be granted when a defendant is prosecuted after he has been induced to believe that he will not be prosecuted. In R v. Croydon Justices, ex parte Dean [1994] 98 Cr App R 76 it was found to be an abuse to prosecute a youth of seventeen for destroying evidence after a murder when he had been invited by the police to give evidence at the murder trial on the assurance that he would not himself be prosecuted.
In R v. Bloomfield [1997] 1 Cr App R. 135 prosecuting counsel had told the court that it would offer no evidence because it was accepted that the defendant had been the victim of a set-up. The Crown Prosecution Service later decided that it intended to continue the prosecution. The Court of Appeal quashed the defendant's conviction: whether or not there was prejudice to him, it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.
In R v. Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540 the Court of Appeal approved inter alia the proposition that, where a defendant has been induced to believe he will not be prosecuted, this is capable of founding a stay for abuse. The Court of Appeal considered, however, that breach of a promise not to prosecute did not necessarily and, ipso facto, give rise to abuse, but might do so if circumstances had changed.
28. A stay may also be granted on grounds of delay in bringing the prosecution. Guidance as to when a stay should be granted was given by the Court of Appeal in R v. S [2006] 2 Cr App R 23. The court stated that the correct approach was for the trial judge to bear in mind the following principles: (i) even where delay was unjustifiable, a permanent stay should be the exception rather than the rule; (ii) where there was no fault on the part of the complainant or the prosecution, it would be very rare for a stay to be granted; (iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial could be held; (iv) when assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay would be placed before the jury for their consideration in accordance with appropriate direction from the judge; (v) if, having considered all these factors, a judge's assessment was that a fair trial would be possible, a stay should not be granted.
29. In Attorney General's Reference (No. 2 of 2001) [2004] 2 AC 72 the House of Lords was asked to consider whether Article 6 § 1 of the Convention required a stay to be ordered when there had been excessive delay in criminal proceedings. The House of Lords held that the appropriate remedy for a breach of the right to determination of a criminal charge within a reasonable time was not necessarily a stay on proceedings. It would be appropriate to stay or dismiss the proceedings only if either a fair hearing was no longer possible or it would be, for any compelling reason, unfair to try the defendant. The public interest in the final determination of criminal charges required that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances. The category of cases in which it might be unfair to try a defendant included cases of bad faith, unlawfulness and executive manipulation but was not confined to such cases. However, such cases would be exceptional, and a stay would never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's rights under Article 6 § 1.
30. Finally, a stay may also be granted where there has been such publicity surrounding the case that a fair trial is not possible. For example, convictions were quashed in R v. McCann [1991] 92 Cr App R 239 and R v. Taylor and Taylor [1994] 98 Cr App R 361 inter alia due to adverse publicity during the trial. McCann concerned a terrorism trial during which the Government had announced plans to change the law on the right to silence, a right of which the defendant had availed himself. In Taylor and Taylor, the press coverage was found by the Court of Appeal to be “unremitting, extensive, sensational, inaccurate and misleading” and created a real risk of prejudice against the defendants. Later cases have considered that directions from the trial judge to the jury and the nature of the trial process would operate to prevent the jury being prejudiced by publicity. Thus in R v. West [1996] 2 Cr App R 374, a case where the defendant was convicted of ten counts of murder, it was found that a fair trial could be held after intensive publicity adverse to the defendant. The Court of Appeal observed that:
“To hold otherwise would mean that if allegations of murder were sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.”
31. The fairness of trial after adverse publicity was considered by the Judicial Committee of the Privy Council, though not in the context of an application for stay on grounds of abuse of process but rather in a Scottish appeal in Montgomery v. HM Advocate; Coulter v. HM Advocate [2003] 1 AC 641. The appeal concerned the proposed prosecution of two men for murder. Comments had been made by a trial judge in a related trial, in which he criticised the Crown for not charging the two men with murder. Those comments received a great deal of publicity and subsequently the two men were in fact charged with murder. The issue for the Privy Council was whether the proposed trial of the two men would be compatible with Article 6. Lord Hope giving the lead judgment found that it would be. He stated:
“It needs to be emphasised, as was pointed out in Pullar v. United Kingdom (1996) 22 E.H.H.R. 391, that the rule of law lies at the heart of the Convention. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasbourg court has taken to the question whether there are sufficient safeguards recognises this fact. It does not require the issue of objective impartiality to be resolved with mathematical accuracy. It calls instead for “sufficient” guarantees or safeguards and for the exclusion of any “legitimate doubt”: Pullar v. United Kingdom, pp. 402-403, 405 paras. 30, 40. Account is taken of the fact that certainty in these matters is not achievable.
...
I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially. Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Warren Young, Neil Cameron and Yvette Tinsley, Juries in Criminal Trials; Part Two, Chapter 9, para. 287 (New Zealand Law Commission preliminary paper no. 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.
...
[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.
The Scottish judges are not alone in proceeding upon this assumption. In the Supreme Court of Canada, in Reg. v. Corbett [1988] 1 S.C.R. 670, 692, Dickson C.J. said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law. In R. v. Vermette (1988) 50 D.L.R. (4th) 385, 392 La Forest J., under reference to the Corbett case, said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider. In the High Court of Australia, in The Queen v. Glennon (1992) 173 C.L.R. 592, 603 Mason C.J. and Toohey J. said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. In the Irish High Court, in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, 496 Hamilton P., drawing upon his experience as counsel and as a judge, said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence. I consider that the judges in the court below were entitled to draw upon their experience, and I see no reason in the light of my own experience to disagree with their assessment.”


ITEMID: 001-5672
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: OFFERHAUS and OFFERHAUS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicants are Netherlands nationals, born in 1972 and 1975 respectively and living in Amsterdam and Utrecht respectively. They are represented before the Court by Mr G.A. Offerhaus, a lawyer practising in Amsterdam.
The applicants each held 1,787 shares in a Netherlands public limited company (Naamloze Vennootschap), Nationale-Nederlanden, then the biggest insurance company in the Netherlands.
In 1990 the boards of directors of Nationale-Nederlanden and a bank, the public limited company NMB-Postbank, set up a holding company, Internationale Nederlanden Groep N.V. (better known as ING), with a view to obtaining shares in Nationale-Nederlanden and NMBPostbank in return for ING shares. After having initially made an unsuccessful offer to shareholders of the two existing companies, ING succeeded in March 1991 in obtaining the vast majority of all outstanding shares.
The applicants were among a number of minority shareholders who refused to part willingly with their shareholdings in Nationale-Nederlanden.
On various dates in August 1992 ING summoned these minority shareholders to appear before the Corporation Law Division (Ondernemingskamer) of the Court of Appeal (Gerechtshof) of Amsterdam. ING asked the Corporation Law Division to order the minority shareholders to hand over the shares and to set a price per share.
Of the two applicants only Ms Ykeline Helena Florentina Offerhaus was represented in the ensuing proceedings. She did not object to handing over her shares to ING but asked that the price per share be set at 128.79 NLG (Netherlands guilders).
The Corporation Law Division gave judgment on 11 September 1995. It ordered the minority shareholders to hand their shares over to ING against payment of NLG 98.32 plus statutory interest over that sum from 1 December 1994 up until the date on which the handover took place but minus any dividends paid during that period. This price was based on the rate at which ING had offered to exchange Nationale-Nederlanden shares for its own, and the price at which ING shares were traded at the stock exchange on 1 December 1994.
The applicants appealed on points of law (cassatie) to the Supreme Court (Hoge Raad). Insofar as is relevant here, they complained about the way in which the price per share had been calculated. In their view, the basis for the calculation should not have been the price at which the shares in question had been traded on the stock exchange but the takeover value of the enterprise divided by the number of shares (the intrinsic value); this would have resulted in a higher price per share.
On 11 September 1996 the Supreme Court gave judgment. It decided to dismiss the appeal, finding that it was reasonable to take the price at which shares were traded on the stock exchange as indicative of their market value and noting that the exchange rate of Nationale-Nederlanden shares against ING shares had not been called into question. Insofar as the applicants relied on Article 1 of Protocol No. 1, the Supreme Court held:
“4.6. The cassation plea further argues that, on ground of Article 1 of Protocol No. 1 to the Convention, the shareholders <concerned> can claim an exchange value that has been determined according to the most advantageous manner of calculation of the value.
4.6.1. Shareholders having to hand over their shares are entitled to a real price for their shares. It cannot be derived from the aforementioned provision that that price should be another price than this price, and in particular not that always that price should be considered which, according to (theoretical) calculations, would attain the highest result. Neither the statutory rules on share handovers, nor - as in fact in the present case - the Corporation Law Division seek to compensate more than the “real” value of the shares. There is no violation of Article 1 of Protocol No. 1 on this point, so that this part of the cassation plea also fails.
It is not stated when precisely the applicants eventually handed over their shares to ING and how much they were actually paid. They do allege, however, that at that moment the price at which the shares concerned were traded at the stock exchange was considerably higher than that at which they had been valued by the Corporation Law Division plus statutory interest.
Article 2:92a § 1 of the Civil Code provides that a shareholder who on his own account provides at least 95% of the subscribed capital (geplaatst kapitaal) in a public limited company is entitled to seek an order addressed to the collected minority shareholders for the compulsory handover of the remainder of the shares. Article 2:92a § 2 provides that no such handover shall be ordered inter alia if one of the minority shareholders would thereby incur disproportionate financial loss. Article 2:92a § 5 requires the competent court to set a price for the shares at a specific date. To this price must be added the statutory interest up until the date of the actual handover, but dividends paid out after the date set by the court must be deducted. The court may of its own motion obtain expert advice.
It appears from the Explanatory Memorandum to the Act which enacted that article that the intention of the legislature was to protect the holding company against the undue expense and complication which could be caused by such minority shareholdings: for instance, separate annual meetings of shareholders had to be held; annual reports had to be more comprehensive; and the company concerned could not, for tax purposes, be considered to form a single taxable entity. It is stated that an arrangement which ensures that the minority shareholders receive a fair price does not cause them loss: thus, if no agreement on the price is reached the court is not bound by the figure proposed by the majority shareholder but sets a figure of its own. The price for the shares will normally be calculated on the basis of the company’s balance sheet but may be determined as per any specific date chosen by the court (Lower House of Parliament, parliamentary year 1984-85, 18 904, no. 3, pages 5 and following).


ITEMID: 001-113811
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BJELIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1947 and lives in Škofja Loka.
6. On 4 April 2002 the applicant instituted proceedings before the Ljubljana District Court seeking compensation for damages sustained in an accident at the workplace.
7. On 27 September 2002 the parties were directed to solve the dispute through mediation. The mediation was unsuccessful and an order to return the file to the first-instance court was issued on 17 January 2003.
8. On 9 November 2004 the court held the first hearing.
9. Between 14 December 2004 and 4 October 2005 three hearings were held and an expert appointed. At the last hearing the court delivered an interim judgment, reserving the decision on the amount of compensation to the final judgment. Both parties appealed.
10. On 25 October 2006 the Ljubljana Higher Court upheld both appeals and remitted the case for re-examination.
11. On 7 December 2006 the first-instance court held a hearing.
12. On 9 March 2007 the first-instance court issued a decision on termination of proceedings, following an out-of court settlement reached between the parties.
13. For relevant domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06, 25 November 2008).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82275
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ELAL AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr İsa Elal, Mr Bayram Kazaklı, Mr Cafer Sağır and Mr Rıdvan Gülfidan, are Turkish nationals who were born in 1961, 1955, 1954 and 1965 respectively. The first and second applicants live in Yalova and the third and fourth applicants live in Istanbul. They were represented before the Court by Ms S. Gürcan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 January 1983, 26 October 1982, 1 March 1981 and 9 November 1982 respectively the applicants were arrested on suspicion of membership of an illegal organisation.
On an unspecified date, the Istanbul Martial Law Court Public Prosecutor filed an indictment against the applicants and 132 other accused. The applicants were charged under Article 146 of the Criminal Code with attempting to undermine the constitutional order.
The applicants had legal representation during the proceedings. Mr İsa Elal was represented by Ms Nurcan Akça, Mr Bayram Kazaklı was represented by Ms Nesrin Dursun İnceoğlu and Mr Cafer Sağır and Rıdvan Gülfidan were represented by Mr Nebi Barlas.
The applicants were released pending trial.
On 27 September 1984 the Istanbul Martial Law Court convicted the applicants as charged.
On 6 June 1990 the Military Court of Cassation quashed the judgment of the first-instance court.
On 6 April 1993 the Istanbul Martial Law Court convicted Mr İsa Elal and Mr Bayram Kazaklı and acquitted Mr Cafer Sağır and Mr Rıdvan Gülfidan of the charges against them.
On 1 August 1994 the lawyer of the third and fourth applicants, Mr Nebi Barlas, appealed against the judgment of the Istanbul Martial Law Court in respect of his other clients who had been convicted. The names of the third and fourth applicants, who had been acquitted of the charges against them, were not listed in the appeal petition.
In their observations the Government submitted that the judgment of the Istanbul Martial Law Court was served on 13 June 1998 on Mr İsa Elal’s mother, on 9 June 1998 on Mr Bayram Kazaklı in person, and on 9 June 1998 on Mr Cafer Sağır’s mother. The Government further stated that Mr Rıdvan Gülfidan could not be found at his address and as he had failed to report his new address to the domestic court, the judgment in question was attached to the door of his last known address on 30 October 1998 in accordance with Article 35 § 2 of the Law on Notifications.