ITEMID: 001-110787
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ELLIS AND SIMMS v. THE UNITED KINGDOM AND MARTIN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, Mr Marcus Ellis, Mr Rodrigo Simms and Mr Nathan Antonio Martin, are British nationals who were born in 1980, 1984 and 1978 respectively. Mr Ellis and Mr Martin are currently detained at HM Prison Whitemoor, March, and Mr Simms is currently detained at HM Prison Full Sutton, York. Mr Ellis and Mr Simms were represented before the Court by McGrath & Co., a firm of solicitors based in Birmingham, and Mr Martin was represented by Jonas Roy Bloom, a firm of solicitors also based in Birmingham.
3. On 6 December 2002 Yohanne Martin was shot dead in a car in Birmingham. It appears that he was a member of, or had links with, a gang based in Birmingham called the Burger Bar gang. Those responsible for his shooting were believed to have been members of the Johnson Crew, a rival gang in Birmingham.
4. Shortly after 4 a.m. on 2 January 2003, two young women were shot dead outside a party at Uniseven, a hairdressing salon in Birmingham. Two other young women were injured. The shots were fired from a red Ford Mondeo car, which drove off following the shooting. The red Mondeo was later abandoned and set on fire.
5. There was no dispute that the killings of the young women were gang-related. It was the prosecution case that the shootings were perpetrated by members of the Burger Bar gang and were intended to target members of the Johnson Crew, in revenge for the shooting of Yohanne Martin. The victims were not members of either gang and had been caught in the crossfire.
6. The applicants were charged, together with two other men, B and G., with two counts of murder and two counts of attempted murder in respect of the shootings of the four young women. The prosecution case was that the defendants were all members of the Burger Bar gang and had participated in a joint enterprise to kill using firearms. They alleged that the red Mondeo had been purchased in Roade on 31 December 2002 by G. and Mr Martin for criminal purposes and had been driven to Birmingham. On the evening of 1 January 2002, a member of the Johnson Crew had been boasting about his gang’s superiority in a club called RB’s when Mr Ellis was present. An announcement was made in the club that there would be an “after party” at Uniseven. The prosecution claimed that the defendants had decided to take the opportunity to exact their revenge and arranged the drive-by shooting intended to target members of the Johnson Crew. They alleged that Mr Ellis had been the front seat passenger of the red Mondeo, that Mr Martin had been a rear passenger of the car and that Mr Simms had been at the party at Uniseven, had acted as a “spotter” in informing the car’s occupants of events at the party and had guided in the Mondeo.
7. Although a number of people had witnessed the shooting, few were prepared to make statements because of a fear of retaliation against them and their families by gang members. Five witnesses came forward but were unwilling to have their identities disclosed. Only two of the five purported to be able to identify the occupants of the red Mondeo. They were given the pseudonyms “Mark Brown” and “Jones”. A third witness, “Stacey Francis”, claimed to have seen Mr Ellis at RB’s earlier that evening. The remaining two witnesses had been present during the shooting at Uniseven.
8. Information concerning the evidence and the backgrounds of the five anonymous witnesses was disclosed to the defence.
9. Mark Brown’s evidence was encapsulated in his witness statement of 11 December 2003. In that statement, he said he was outside Uniseven and saw a red car driving down the road. He could see that there were four men in the car and he knew all of them. He identified the front seat passenger of the car from which the shots were fired as Mr Ellis. He said he saw a gun in Mr Ellis’ hand. The man sitting behind Mr Ellis was, he said, Mr Martin. He saw Mr Martin lean over and take the gun from Mr Ellis. He identified the driver as “Michael” and the other passenger as B. He then heard the sound of gunshots. He said that the men in the car were not wearing masks.
10. He said that he had known Mr Martin for a few months and that he had been involved in an incident before the New Year shootings where Mark Brown and his cousin were shot at. Mark Brown stated that he had a grudge against three of the people in the car, which was related to the shooting incident. He also said that he had known Mr Ellis for five or six years, that he had seen him numerous times and that they did not get on because Mr Ellis had previously dated a niece of one of his cousins.
11. A number of disclosures regarding Mark Brown’s previous comments to the police and in prison, his background and his criminal antecedents were made by the prosecution to the defendants. These disclosures were taken from prison and police records. In particular, it was disclosed that Mark Brown had links to the Cash for Money Crew, the younger arm of the Johnson Crew. He had stated that he was wanted by the Burger Bar gang, that there had been an attack planned on him for New Year’s Eve 2001 and that he had been shot at three times. Finally, it was disclosed that Mark Brown had made three court appearances in respect of robberies.
12. It was also disclosed that Mark Brown refused to participate in an identification procedure to identify those he claimed were in the red Mondeo.
13. Jones’ evidence was set out in his witness statement of 24 March 2004. In his statement, he indicated that before the fatal shootings he had been at a public house and had seen Mr Martin, Mr Ellis and B. standing by a red Mondeo talking. He later went to the party at the hairdresser’s salon where he saw Mr Simms walk by. He claimed that about ten minutes later he saw Mr Simms sitting in the back of the red car, in the middle seat. It was driving slowly, and B. was in the front passenger seat, and Mr Martin and Mr Ellis were in the back with Mr Simms. Ten minutes later the car drove by again, but the occupants had changed positions. Mr B. was leaning out of the back passenger window firing a gun. The other occupants had changed seats but Jones was unsure who was where.
14. It was also disclosed that Jones was an experienced and serious criminal who moved in the same circles as the defendants. His criminality was wider than that revealed by his antecedent history and the trial judge considered that he was plainly very knowledgeable about firearms, their availability and their price.
15. Stacey Francis claimed to have seen Mr Ellis at RB’s at around midnight on 1 January 2002. She was of good character.
16. Disclosures were also made about the evidence of the remaining two anonymous witnesses and their backgrounds.
17. The prosecution relied on telephone call pattern evidence to show that a number of phone calls took place between the defendants at critical times in the lead up to and aftermath of the shootings. There was evidence of calls between the mobile phone of Mr Martin and the mobile phone associated with G., and between the mobile phones of Mr Martin and Mr Ellis, on 31 December 2002, when the Mondeo was purchased and driven to Birmingham. There was evidence of various calls made around 4 a.m. on 2 January 2003 between Mr Simms and the mobile phone associated with G.
18. There was also evidence of a car which was registered in the name of Mr Martin being driven from Birmingham to Roade on 31 December 2002, where the two occupants purchased a red Mondeo. CCTV footage showed the Mondeo being driven from Roade to Birmingham in convoy with Mr Martin’s vehicle. Mr Martin subsequently accepted that he participated in the purchase of the red Mondeo, allegedly for a friend.
19. The prosecution also relied on cell site evidence, which provided information on the locations from which mobile telephone calls were placed and was consistent with Mr Simms, Mr Ellis, Mr Martin and G. being in the area of the killing at the material time and making the movements alleged by the prosecution. It was also consistent with G. and Mr Ellis being in the area where the car was subsequently burnt out. The cell site evidence was also consistent with the prosecution allegation that Mr Ellis’ alibi was false.
20. The prosecution further relied on evidence of firearms residue found on Mr Ellis’ jacket.
21. Finally, the prosecution sought to call the five anonymous witnesses, including Mark Brown and Jones, to give oral evidence of what they saw on the night of the shootings.
22. On 21 October 2004, the trial judge handed down his ruling on the requests for anonymity at a preparatory hearing. He noted at the outset that it was not disputed that the witnesses reasonably feared retribution both personally and for their families if their identities were made known. He further observed that although a number of people must have witnessed the events, Mark Brown and Jones were the only two witnesses who directly implicated some of the defendants.
23. The judge considered the possible support for Mark Brown’s evidence. He noted that the prosecution relied on other evidence, including mobile phone records, evidence linking some of the defendants to the purchase of the red Mondeo and evidence of firearms residue that had been found on a piece of clothing recovered from Mr Ellis (see paragraphs 17-20 above). He then turned to consider what had been disclosed about the anonymous witnesses, summarising the disclosures about the statements they had made and their backgrounds (see paragraphs 8-16 above). He observed that a number of public interest immunity hearings had been held and that a substantial amount of disclosure had taken place.
24. The judge examined the case-law of this Court and the domestic courts on the issue of anonymous witnesses. He summarised the parties’ submissions and set out his conclusions as regards the general position in respect of anonymous witnesses.
25. First, he referred to the “very real problems now encountered in persuading witnesses to come forward and go into the witness box”. He noted that intimidation of witnesses was, or was perceived by witnesses, to be rife. He considered it self-evident that society had an interest in encouraging witnesses to come forward and protecting them if they did.
26. He indicated that the question whether a witness could give evidence anonymously was a matter for the exercise of the trial judge’s discretion. The decisive feature in the exercise of that discretion was whether the ensuing trial could be fair. He noted that whether any given trial was fair was a matter of balancing the different interests involved, which he identified as the interests of society and the victims in allegations of serious crime being tried and the guilty punished, the protection of the witness and the interests of the accused in being able properly to defend himself. The trial judge considered that the defendants had a right to “a fair administration of justice”. However, that right was not absolute and the fact that a defendant would suffer some prejudice did not mean that a fair trial could not take place.
27. The trial judge further considered that a witness whose creditworthiness was in issue could give evidence anonymously, provided that proper caution was exercised, that there had been investigation of the creditworthiness of the witness and that full disclosure had been given.
28. As to the case-law of this Court, the judge was of the view that the observations in Doorson v. the Netherlands, § 76, 26 March 1996, Reports of Judgments and Decisions 1996II, to the effect that a conviction based solely or decisively on anonymous evidence could not be fair, had to be considered in the context of the Dutch procedure which the Court was then considering. In the present case, the witness would be cross-examined in front of the jury on the basis of very substantial information which had been disclosed and which enabled his account to be questioned. He observed that it was part of any assessment of the fairness of the trial to consider the trial process, and more particularly how anonymous evidence was to be given and what the jury would be told. He considered that the trial process could minimise any prejudice to the defendant because, among other things, the jury could be told to take account of the problems that the defence faced when such a witness gave evidence and that they should not hold against the defendant the giving of such evidence.
29. The trial judge concluded that Mark Brown could give evidence anonymously and that the trial would not be unfair as a result. He based his decision on the following considerations:
“164. First, he is a witness reasonably in fear. Objectively, if identified, his life or that of his family or friends may be in danger.
165. Second, he has evidence to give which is of the very greatest importance in resolving these serious criminal allegations.
166. Third, if not permitted to give evidence anonymously, it is likely that the prosecution will be unable to adduce his evidence.
167. Fourth ... there has been very extensive disclosure in his case. It permits the defendants very extensive and detailed cross-examination. The limits placed on that cross-examination and on the conduct of defence can be made clear to the jury. While it may be that disclosure of his identity ... might lead to further material for crossexamination going to credit, the present disclosure is in my view sufficient to permit the defence properly to be advanced and a fair trial to take place. Indeed, it may be argued that the defence will be in a particularly strong position without knowing the witness’ identity. They have ample material for cross-examination. In addition, they have the point to make to the jury concerning the difficulties they are under.
168. Fifth, in addition to any attack on the witness’ credibility, the defence have in any event an argument on the difficulty of any identification in the circumstances spoken to by the witness. It may well be ... I shall be obliged to give a ‘Turnbull direction’. If so, the jury will be warned of the dangers in the identification evidence and its weaknesses enumerated.
Sixth, ... I am entitled in considering this witness’ creditworthiness, to take into account such support as there apparently is for his account.”
30. In respect of Jones, the judge considered that there were questions raised in respect of his creditworthiness that put him into a different category from Mark Brown. He noted that there was not the extent of apparent support for his evidence which existed in the case of Mark Brown and, despite the fact that the disclosure given would permit a great deal of cross-examination, he concluded that it would not be safe to permit him to give evidence anonymously.
31. The remaining three witnesses were also permitted to give anonymous evidence. In respect of two of them, no objection had been made.
32. Finally, the judge indicated that the question of anonymity was something to be kept continually under review.
33. On 28 October 2004, the judge handed down a further ruling following a submission by the defendants that in the absence of a proper identification procedure by Mark Brown, no fair trial could take place. The defendants argued that his evidence of recognition could only be admitted if there were a proper identification procedure or if Mark Brown’s identity were disclosed.
34. The judge was of the view that even if the submission amounted to an attack on his previous ruling on anonymity, it was nonetheless something he had to consider. He continued:
“4. ... In any criminal trial fairness requires that rulings such as these, which are far from straightforward, are continually kept under review. That includes taking account of fresh submissions which may have a bearing on the trial’s fairness. In short, if I conclude that a fair trial required disclosure of Brown’s identity I would review my earlier ruling.”
35. He noted Mark Brown’s explanation for why he did not agree to participate in an identification procedure, namely that he wanted to do it but was afraid of the impact of picking or not picking suspects and his identity becoming known to them if he did not pick them. He analysed Mark Brown’s identification evidence, noting that he set out the basis upon which he knew the defendants, at times in considerable detail. The judge concluded:
“In the course of my ruling on anonymity, I referred to the extensive crossexamination available to the defence in the light of the disclosure. It would still be available. Moreover, it seems to me that while cross-examination will, as is inevitable, be to some extent constrained, much can be asked. Whether he may be a fantasist can be investigated. Further, as I have indicated, what Brown says as to the history of his relationships with the defendants can be amplified before he gives evidence ... As I indicated in my previous ruling, it does not end there. There would be a Turnbull direction. The jury would know the limitations under which the defence was acting. The fact Brown did not accept the offer of an identification procedure would be plain. My reading of the material in which he refused such a procedure may provide powerful material for cross-examination.”
36. He therefore ruled Mark Brown’s evidence of recognition to be admissible, subject to the exclusion of hearsay, and considered it unnecessary to reconsider his ruling on anonymity, noting that Mark Brown’s evidence as a whole and his purported recognitions could be questioned, that there was ample cross-examination possible and that the presence of counterbalancing factors depended on each case. He reiterated the need to keep the matter under review.
37. A number of the defendants, including Mr Simms and Mr Ellis, appealed the judge’s ruling on anonymity. The Court of Appeal handed down its judgment on 2 November 2004. It considered that the trial judge had applied his mind impeccably to the law, both in England and under Article 6 of the Convention. The appeals were accordingly dismissed.
38. Subsequently, a number of further disclosures about Mark Brown were made. It was disclosed that he owed money to both gangs and that the police had made certain payments to him. The handwritten police log was disclosed as were the prison notes from institutions where Mark Brown had been detained, which revealed that Mark Brown was awaiting sentence when the police first made contact with him. As a result of the further disclosures, the defence asked the judge to review his ruling on anonymity. It was alleged that the newly-disclosed material undermined Mark Brown’s credibility and creditworthiness and suggested that his information about the shooting may have been hearsay.
39. On 10 January 2005 the trial judge handed down a further ruling. He accepted that further disclosure had revealed more about Mark Brown than had been known at the time of the previous ruling. However, even at that time, Mark Brown’s gang background and his motive for lying were clear. The judge concluded that the order for anonymity should remain. He considered that Mark Brown’s credibility was not so affected that he could only give evidence if his identity were disclosed. He further noted that on the basis of what had now been disclosed the defence could mount a formidable attack on Mark Brown’s credibility. Specifically as to the concerns regarding hearsay evidence, the judge indicated that if Mark Brown was making any assertions on the basis of hearsay, this would become clear in cross-examination whether he was anonymous or not. He reiterated the need for careful directions to the jury in due course.
40. Before Mark Brown took the witness stand, the judge gave the jury certain directions. In particular, he advised them that the fact that Mark Brown was giving evidence anonymously had significant implications for the defence and restricted them in the conduct of their cases. They were not permitted to ask questions which could lead to his identification. Because they did not know who he was they could not put to him any personal reason he might have had for implicating them. Nor could they put to him any general matters going to his credibility. The jury were told that the limitations on the defence were considerable and that the jury had to make allowances for this in its assessment of Mark Brown’s evidence.
41. The judge, the jury, counsel and solicitors could all see and hear Mark Brown give evidence. They was no voice distortion as far as they were concerned, although he was “lightly disguised” in order to boost his confidence. Neither the defendants nor the public were able to see him and his voice was distorted for them.
42. Examination-in-chief of Mark Brown by the prosecution began on 11 January 2005. He gave evidence regarding the events of 2 January 2003. He indicated that he had seen Mr Simms speaking on a mobile telephone outside Uniseven, that he had seen a red car arrive with four occupants, and that three of those occupants were Mr Ellis, Mr Martin and B. Mark Brown was subsequently cross-examined by defence counsel, who sought to undermine his credibility and account of events.
43. Following the conclusion of the prosecution case, all defendants except Mr Martin submitted to the judge that there was insufficient evidence for the jury to convict them. On 17 February 2005 the trial judge handed down his ruling on the defence submission.
44. The judge summarised the prosecution case that there was a joint enterprise to kill using firearms. He noted that the prosecution relied both on circumstantial evidence and on the evidence of Mark Brown. He reviewed in detail the evidence given by Mark Brown. He considered it plain that Mr Brown had lied about many matters but, in the final analysis, concluded that Mark Brown’s credibility was a matter for the jury. He observed that a substantial amount of disclosure had taken place, and that this had formed the basis of sustained and effective cross-examination. He noted:
“... in all Mark Brown was cross-examined most effectively for, as I recall, something like 6 days. His credibility was severely dented; he told many lies; had his identity been known it is, of course, possible that further damage might have been done. But, be that as it may, sufficient damage was done to his credibility to found what was not a frivolous submission that his credibility had been destroyed to the extent that I should direct the Jury accordingly, anonymity apart. It has resulted in a document which the Jury has which effectively sets out his lies as I have indicated.”
45. The judge explained that there would be a further direction to the jury in due course regarding their approach to Mark Brown’s evidence, essentially to the effect that they could not rely on that evidence alone. He continued:
“Having regard to the features I have set out above, it seems to me, circumscribed as they would be by my directions, the Jury could place reliance upon what Mark Brown says. While any conviction would not then be based solely upon his evidence, I accept that one cannot exclude the possibility that his evidence was decisive. However, given the other contemplated safeguards in the trial process so far, that would not seem to me contrary to Article 6 ...”
46. He indicated that it therefore followed that unless the jury could conclude that there was independent evidence supporting Mark Brown and implicating a particular defendant, there could not be a case left to the jury regarding him. The judge explained that, in the circumstances, such evidence would need to be cogent; tenuous evidence would not be enough. He considered that such evidence existed in the cases of Mr Martin, Mr Ellis and Mr Simms and summarised in some detail what could be inferred by the jury from what they had heard during the evidence led at trial, including the background to the shootings, the association among Mr Martin, Mr Ellis, Mr Simms and G. at the material time as shown by telephone records, and the involvement of Mr Martin, G. and Mr Ellis in the purchase of the vehicle used in the shootings. He further noted that firearms residue had been found on Mr Ellis’ clothing. He concluded:
“Putting together the different pieces of evidence I have summarised ... it does seem to me there is circumstantial evidence in the cases of Martin, who ... does not dispute it, [G.], Ellis and Simms, in respect of their participation in this joint enterprise to kill. It would also be sufficient evidence of participation to enable the jury then to consider what Mark Brown had to say ...”
47. However, the judge did not consider there to be cogent independent evidence in respect of B., and accordingly directed the jury to acquit him.
48. In the course of the trial judge’s summing up, he gave the jury a warning about identification evidence, highlighting the weak aspects of Mark Brown’s purported identification evidence.
49. He also gave the jury a number of warnings about Mark Brown. He directed them, first:
“... if you are to rely on anything said by Mark Brown, you must be sure he is a credible witness, someone capable of belief. If you’re not sure of that, no amount of other evidence which is said to be consistent with his account can help. If you think he may not be someone upon whom you can place any reliance, you must ignore his evidence.
50. If they were satisfied that he was credible, he directed them to approach his evidence in the following way:
“...You must consider whether in respect of the defendant whose case you are considering there is some other evidence of that defendant’s participation in this joint enterprise ... apart from what Mark Brown says. So put Mark Brown to one side and consider if there is some other evidence of that defendant’s participation. If you’re not sure that there is such other evidence, then you must acquit that defendant. If you conclude that there is such other evidence, then you may take Mark Brown’s evidence into account in deciding whether or not you are sure of guilt, bearing in mind the first warning which I just gave you.
In other words, first you consider the circumstantial evidence. If you are sure it implicates the defendant in question in this joint enterprise, then but only then may you consider what Mark Brown says. Of course, if you think you cannot rely on Mark Brown at all, then you decide guilt or innocence solely on the basis of the other evidence. You will remember that I told you that the prosecution submit that the other evidence called by them as part of their case proves the defendants Mr Martin, [G.] and Mr Simms are guilty ...
The prosecution accept – again, I’ve told you this – that the evidence called by them would not be enough to place Mr Ellis in the Mondeo. To do that, some reliance would have to be placed on Mark Brown. However, the prosecution say that if you are sure that ... the alibi witness called on behalf of Mr Ellis was lying, then, taking into account that false alibi plus the other pieces of the circumstantial evidence called by the prosecution, that would be enough for you to be sure that Mr Ellis was in the Mondeo, Mark Brown apart. ...[D]efence counsel disagreed with that effectively with some force.
In the case of [B.], whom you acquitted on my direction, there was nothing capable of amounting to such other evidence and that’s why I directed an acquittal. It underlines ... the importance of these directions when considering your approach to Mark Brown.”
51. In concluding his summing up, the judge reminded the jury of how to approach Mark Brown’s evidence regarding the identities of those in the Mondeo. He emphasised that they had first to consider him a credible witness and also be satisfied that there was other evidence of the applicants’ participation in the joint enterprise before they could rely on his evidence.
52. On 18 March 2005 Mr Ellis, Mr Martin, Mr Simms and G. were convicted of two counts of murder and two counts of attempted murder in respect of the shootings of the four young women. They were sentenced to life imprisonment in respect of the murder convictions.
53. The applicants appealed to the Court of Appeal. Their case was heard together with an appeal in the case of R v. Davis.
54. On 19 May 2006 the Court of Appeal dismissed the appeals. It began by noting that in the context of witness anonymity, three rights protected by the Convention were engaged: Article 2 and Article 8 were closely related to the rights, among others, of witnesses; and Article 6 was concerned with the protection of the defendant’s right to a fair trial. It then went on to review the case-law of this Court on the question of anonymous witnesses, as well as decisions of the domestic court. As to the possibility of permitting the evidence of anonymous witnesses at trial, the court found:
“59. ... In our judgment the discretion to permit evidence to be given by witnesses whose identity may not be known to the defendant is now beyond question. The potential disadvantages to the defendant require the court to examine the application for witness anonymity with scrupulous care, to ensure that it is necessary and that the witness is indeed in genuine and justified fear of serious consequences if his true identity became known to the defendant or the defendant’s associates. It is in any event elementary that the court should be alert to potential or actual disadvantages faced by the defendant in consequence of any anonymity ruling, and ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair. Provided that appropriate safeguards are applied, and the judge is satisfied that a fair trial can take place, it may proceed. If not, he should not permit anonymity. If he does so, and there is a conviction, it is not to be regarded as unsafe simply because the evidence of anonymous witnesses may have been decisive.”
55. As to the safeguards available in the applicants’ case, the court referred first to the discretion enjoyed by the trial judge to allow some or all witnesses to give their evidence anonymously. It observed that if the only evidence against the defendants consisted of wholly unsupported anonymous witnesses, whose evidence was demonstrably suspect, it was open to the judge to decide that the prosecution should not adduce it. Further, if the decisive evidence came from an unidentified witness who could not be cross-examined (an anonymous absent witness), the judge could decide that the evidence should not be admitted. Moreover, at the end of the prosecution case the judge could decide that it would be unsafe for the evidence of the anonymous witnesses to be considered further by the jury, or indeed, that the case as a whole should be withdrawn from their consideration. Finally, the judge was obliged to give appropriate directions in his summing up, sufficient to identify the particular disadvantages under which the defence might have been labouring, and would probably suggest that the jury should consider whether there was any independent, supporting evidence, tending to confirm the credibility of the anonymous witnesses, and the incriminating evidence they had given.
56. Turning to the facts of the case, the Court of Appeal examined the mobile phone record evidence presented at trial. It noted:
“129. This evidence about the use of mobile phones demonstrably belonging to the four appellants at critical times all through the night leading up to and after the shooting, taken as a whole, and when linked with the remaining evidence, provided a formidable case against them.”
57. The court also referred to the evidence of firearms residue found on Mr Ellis’ clothing.
58. As regards the trial judge’s ruling on anonymity (see paragraphs 2229 above), the court observed that it had already been upheld by the Court of Appeal in the context of an interlocutory appeal (see paragraph 37 above). It also noted that the judge kept his ruling under constant review and that there had been no less than thirty-eight public interest immunity hearings during the trial itself.
59. In respect of the evidence given by Mark Brown, the court noted:
“135. ... He purported to identify some of those in the red Mondeo, but his evidence was not entirely consistent on the subject, and in any event, faced the major difficulty, that other witnesses had suggested identification was not practicable.
136. By the time Brown gave evidence, there had been full disclosure of all the material available to the Crown. He was cross-examined for five days, by four leading counsel. His credibility was severely damaged.”
60. The court considered that despite the various complaints made by the defendants, the cross-examination of Mark Brown illustrated that notwithstanding his anonymity the process could be and was extremely effective. It observed that so far as Mr Simms was concerned, Mark Brown’s evidence provided no more than a little confirmation of facts already independently demonstrated; and Mr Simms in any event admitted that he had been at Uniseven that night. It further observed that Mr Ellis had chosen not to give evidence and that Mr Martin had given evidence and admitted his involvement in the purchase of the Mondeo and the correctness of the attribution of mobile phone numbers to him. The court continued:
“139. The case was summed up to the jury with meticulous care. The directions of law were accurate. Appropriate warnings were given. The evidence was closely analysed. The summing up was comprehensive, balanced and fair.”
61. The Court of Appeal concluded that there was no reason to doubt the integrity of the trial process or the safety of the convictions.
62. The court refused to certify a question on a point of law of general public importance in the applicants’ case which ought to be considered by the House of Lords. However, it certified a question in the case of R v. Davis and the House of Lords handed down its judgment in that case on 18 June 2008 (see paragraphs 65-66 below).
63. Following the House of Lords’ judgment in R v. Davis quashing the conviction of that appellant, the applicants applied to the Criminal Cases Review Commission to have their convictions referred to the Court of Appeal. Their applications were refused on 5 May 2010.
64. At the material time, the relevant factors for a trial judge considering whether to exercise his discretion to allow anonymous evidence were set out by the Court of Appeal in R v. Taylor and Crabb (22 July 1994). First, there had to be real grounds for being fearful of the consequences if the evidence was given and the identity revealed. Second, the evidence had to be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. Third, the prosecution had to satisfy the court that the creditworthiness of the witness had been fully investigated and that the results of that enquiry had been disclosed to the defence so far as was consistent with the anonymity sought. Fourth, the court had to be satisfied that no undue prejudice was caused to the defendant, “undue” being a necessary qualification because some prejudice was inevitable if the anonymity order was made. Finally, the court could balance the need for protection against the unfairness or appearance of unfairness in the particular case. This reasoning was largely endorsed by the House of Lords in R (Al-Fawwaz) v. Governor of Brixton Prison ([2001] UKHL 69).
65. As noted above, the House of Lords handed down its judgment in the case of R v. Davis ([2008] UKHL 36) on 18 June 2008. The case concerned a fatal shooting at a party in London. Mr Davis admitted attending the party but claimed to have left before the shooting and denied being the gunman. Three witnesses identified Mr Davis as the gunman but all claimed to be in fear for their lives if their identities became known. The judge allowed them to give anonymous evidence at trial. He ordered that they were to give evidence under pseudonyms, that their addresses and personal details were to be withheld from the defendant and his legal advisers, that no question could be asked of them which would permit their identification, that they were to give evidence behind a screen so that they could be seen by the judge and jury only and that their voices were to be distorted for all but the judge and jury.
66. The House of Lords found that the witnesses’ testimony was inconsistent with the long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he might cross-examine them and challenge their evidence. Although this Court had not ruled that anonymous evidence was inadmissible in all circumstances, it had said that a conviction should not be based solely or to a decisive extent on anonymous statements. In any event, their Lordships considered that on the facts of the case before it, this Court would have found a violation of Article 6, as not only was the anonymous witness evidence the sole or decisive basis on which Davis had been convicted but effective cross-examination had also been hampered.
67. Following the House of Lords’ judgment in R v. Davis the Criminal Evidence (Witness Anonymity) Act 2008 (“the 2008 Act”) was enacted as a matter of urgency to permit anonymous witness evidence at trial and to give guidance on the relevant factors to be taken into account, based on the Court’s case-law.
68. The 2008 Act was subsequently replaced by provisions of the Coroners and Justice Act 2009 (“the 2009 Act”), which now regulates the conditions under which witnesses can give evidence anonymously in criminal proceedings. Section 88(2)-(6) lays down the conditions for the making of a witness anonymity order and section 89 sets out a number of relevant considerations to which a court must have regard before permitting anonymous evidence, including whether evidence given by the witness might be the sole or decisive evidence implicating the defendant.


ITEMID: 001-82736
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TIBERNEAC VASILE v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1921 and lives in Cupcini.
7. In 1949 the applicant’s parents were persecuted by the communist authorities. Their property was confiscated and they were exiled to Siberia.
8. In 1989 they were rehabilitated.
9. On an unspecified date in 2004 the applicant brought an action against the Edineţ Department of Finances, seeking compensation for the confiscation of his parents’ property.
10. On 24 March 2004 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay him 97,000 Moldovan lei (MDL) (the equivalent of 6,284 euros (EUR) at the time). The judgment was not appealed against and after fifteen days it became final and enforceable.
11. On 6 May 2004 a Bailiff received the enforcement warrant.
12. On 28 January 2005 the Bailiff sent the enforcement warrant to the President of Edineţ County, without having enforced it.
13. The judgment of 24 March 2004 has not been enforced to date.
14. The relevant domestic law was set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)) and Popov v. Moldova (no. 1), (no. 74153/01, §§ 29-41, 18 January 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83824
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LIU v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 5-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 5. The first applicant was born in 1968. The second applicant was born in 1973. They are husband and wife and live in the town of Sovetskaya Gavan in the Khabarovsk Region.
6. In 1994 the first applicant arrived in Russia on the basis of a valid visa and married the second applicant. In 1996 the second applicant gave birth to a daughter. In November 1996, after his visa had expired, the first applicant was deported to China.
7. In 1999 the second applicant gave birth to a son.
8. In 2001 the first applicant obtained a work visa valid until 1 August 2002 and resumed his residence in Russia. The visa was later extended until 1 August 2003.
9. In November 2002 the first applicant went to the Khabarovsk department of internal affairs (hereinafter “the Khabarovsk police department”) to lodge an application for a residence permit. The Khabarovsk police department did not have the necessary forms; therefore, the first applicant could not lodge his application. It was only on 11 July 2003 that the forms became available.
10. On 24 July 2003 the first applicant applied for a residence permit for a second time. The Khabarovsk police department refused to examine the application and returned the documents to the first applicant.
11. The first applicant challenged the refusal before a court. On 22 October 2003 the Sovetskaya Gavan Town Court found that the refusal to examine the application had been unlawful. It ordered that the Khabarovsk police department examine the first applicant's application for a residence permit.
12. On 22 July 2004 the Khabarovsk police department rejected his application by reference to section 7 (1) of the Foreign Nationals Act (see paragraph 33 below). No further reasons were provided.
13. The applicants challenged the refusal before a court. They complained, in particular, that the Khabarovsk police department had not given any reasons for the refusal. The first applicant had never been charged with any criminal offence or engaged in any subversive activities. The applicants also claimed that the refusal had interfered with their right to respect for their family life and had caused them non-pecuniary damage.
14. On 4 November 2004 the Tsentralniy District Court of Khabarovsk found that the decision of 22 July 2004 had been lawful and rejected the applicants' claim in respect of non-pecuniary damage. It found that the Khabarovsk police department had received information from the Federal Security Service that the first applicant posed a national security risk. That information was a State secret and could not be made public. There is no indication in the judgment that the information had been made available for judicial scrutiny.
15. The applicants appealed. On 18 January 2005 the Khabarovsk Regional Court upheld the judgment of 4 November 2004. It reiterated that, according to the information from the Federal Security Service, the first applicant posed a national security risk. That information was a State secret and was not subject to judicial scrutiny.
16. On 4 March 2005 the Khabarovsk police department rejected a new application for a residence permit. It found that the first applicant was unlawfully residing on Russian territory, that he had taken no steps to make his stay legal, and that he would therefore have to leave Russia. The refusal of a residence permit did not hinder his family life.
17. It appears that the applicants did not challenge the refusal of 4 March 2005 before a court. Instead they asked the Khabarovsk Regional Court to direct that the Khabarovsk police department issue the first applicant with a residence permit. They claimed that by refusing to provide the first applicant with a residence permit the authorities had showed disrespect for their family life. They asked for compensation in respect of non-pecuniary damage. On 9 September 2005 the Khabarovsk Regional Court rejected their claims in the last instance as having no basis in domestic law. It referred to the judgment of 4 November 2004 and held that there were no reasons to depart from its findings.
18. On several occasions in 2003, 2004 and 2005 the first applicant was administratively fined for living in Russia without a valid residence permit. However, the domestic courts reversed most of those decisions, finding them procedurally defective or time-barred.
19. It is apparent from a certificate issued by a deputy head of the Sovetskaya Gavan Town prosecutor's office on 15 December 2005 that no criminal proceedings had been brought against the first applicant between 1996 and 2005.
20. On 18 November 2005 the first applicant was stopped by the police. The police officer drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code (see paragraph 34 below). The report was transmitted to a judge.
21. On 21 November 2005 the Sovetskaya Gavan Town Court held that the first applicant had infringed the residence regulations and ordered his administrative removal and detention pending removal. On the same day he was placed in a detention centre.
22. On 13 December 2005 the Khabarovsk Regional Court quashed the decision of 21 November 2005 on appeal, remitted the case for a new examination by the Town Court, and ordered the first applicant's release. It held that, in accordance with Article 27.3 § 1 of the Administrative Offences Code, detention with a view to administrative removal could only be ordered if there were sufficient reasons to believe that the person would try to avoid execution of the removal order. The Town Court had not given reasons for the detention order and the case file did not contain any information justifying the first applicant's detention. On the same day the first applicant was released.
23. On 28 December 2005 the Sovetskaya Gavan Town Court held that the report of 18 November 2005 did not indicate which residence regulations had been infringed by the first applicant. It returned the report to the local police department for correction.
24. On 3 February 2006 the administrative proceedings against the first applicant were discontinued as time-barred.
25. In the meantime, on 3 February 2005, the Khabarovsk police department prepared a decision that the first applicant's presence on the Russian territory was undesirable and submitted it to the head of the Federal Migration Service for approval. The draft decision indicated that the first applicant had been unlawfully resident on Russian territory and had been repeatedly fined under Article 18.8 of the Administrative Offences Code for his failure to leave Russia after the expiry of the authorised residence period. On 22 March 2005 the head of the Federal Migration Service confirmed the decision and it became enforceable. The applicants were informed about the decision on 21 April 2005.
26. On 22 August 2005 the Khabarovsk police department asked the Federal Migration Service to order the first applicant's deportation. On 12 November 2005 the head of the Federal Migration Service ordered the first applicant's deportation by reference to section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation (see paragraph 35 below). No further reasons were provided. The applicants were informed of the decision on 12 December 2005.
27. On 15 May 2006 the Sovetskaya Gavan Town Court ordered the first applicant's placement in a detention centre with a view to deporting him. It held that the first applicant was unlawfully residing on Russian territory, and that on 12 November 2005 the Federal Migration Service had ordered his deportation. Therefore, he had to be held in custody until deportation. The first applicant was not present at the hearing. He was informed of the decision on 5 September 2006.
28. On 24 November 2006 the Khabarovsk Regional Court quashed the decision of 15 May 2006 on appeal and remitted the case. It found that the decision had been taken in the first applicant's absence, in breach of Articles 5 and 6 of the Convention.
29. On 25 December 2006 the Sovetskaya Gavan Town Court for a second time ordered the first applicant's placement in a detention centre with a view to deporting him. It referred to the same reasons as in the decision of 15 May 2006.
30. It appears that the deportation order was not enforced. The applicant is at present living with his family in Russia.
31. Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in the Russian territory was lawful as long as their visa remained valid. On 25 July 2002 the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 (“the Foreign Nationals Act”) was adopted. It introduced the requirement of residence permits for foreign nationals.
32. A foreign national married to a Russian national living on Russian territory is entitled to a residence permit (section 6 § 3 (4)).
33. A residence permit may be refused only in exhaustively defined cases, particularly if the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7 (1)).
34. Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory of the Russian Federation without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to punishment by an administrative fine of 500 to 1,000 Russian roubles and possible administrative removal from the Russian Federation. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 requires such a report to be transmitted within one day to a judge or to an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation shall be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court.
35. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national's presence on Russian territory is undesirable. Such decision may be issued if a foreign national is unlawfully residing on Russian territory, or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003, “the Entry Procedure Act”).
36. If a police department uncovers circumstances indicated in section 25.10 of the Entry Procedure Act, it must prepare supporting materials, draft a decision that a foreign national's presence on Russian territory is undesirable and send the decision and supporting materials to the Federal Migration Service for approval. The officials of the Federal Migration Service must submit the materials to the head of the Federal Migration Service and must inform the police department of the decision taken. The police department must immediately send the decision to the foreign national whose presence on Russian territory has been declared undesirable (sections 2 to 6 of the Instruction on the organisation of the process of making decisions that a foreign national's presence on Russian territory is undesirable, approved by the Order of the Ministry of Internal Affairs, No. 510 of 17 August 2004).
37. Article 32.10 § 5 of the Administrative Offences Code allows domestic courts to order a foreign national's detention with a view to administrative removal. Article 27.3 § 1 provides that administrative detention can be authorised in exceptional cases if it is necessary for fair and speedy determination of the administrative charge or for execution of the penalty.
38. Sections 31 (9) and 34 (5) of the Foreign Nationals Act provide that a foreign national against whom an administrative removal order or deportation order has been made can be held in custody until execution of such order. Detention has to be authorised by a court.
39. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of unlawful criminal prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community work (Article 1070 § 1 of the Civil Code). Damage sustained by an individual through unlawful acts of the investigation or prosecution authorities in a form other than listed above is compensated for in accordance with the general grounds giving rise to liability for damage, that is on the condition that the fault of the person who inflicted the damage has been proven (Article 1069 read in conjunction with Article 1064).
40. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of unlawful conviction or prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community service (Article 1100 § 2).
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-106653
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KYRYLYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Angelika Nußberger;Ganna Yudkivska
TEXT: 4. The applicant was born in 1972.
5. On 24 May 2005 the police instituted criminal proceedings against him on suspicion of fraud. Subsequently, additional charges were brought against the applicant (unlawful acquisition of a vehicle, money laundering and forging documents). Since 6 September 2005, he has remained in detention on remand.
6. Following the completion of the pre-trial investigation, on 24 March 2006 the case was transferred to the Solomyanskyy District Court of Kyiv, which on 24 November 2008 delivered a judgment.
7. On 27 April 2010 the Kyiv City Court of Appeal quashed that judgment and remitted the case for fresh examination to the Solomyanskyy Court, before which the proceedings are still pending.
8. According to the Government, in the course of the proceedings fifty four witnesses and four victims were interrogated, questioned or confronted, some of them repeatedly. This took the authorities about three months in total. Seven forensic examinations were ordered and lasted for about five months in total. Nine hearings were adjourned due to the applicant’s and two other co-defendants’ representatives’, victims’ and witnesses’ failure to appear. The applicant disagreed stating that his representative had not been informed of the hearings which he had not attended. One hearing was adjourned on the applicant’s request. Thirty further hearings were adjourned, mainly because the defendants were not escorted to the court, due to the witnesses’ or prosecutor’s failure to appear or because the judge was absent. On several occasions the courts issued compulsory summonses for witnesses.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58920
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF KUDLA v. POLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 10. On 8 August 1991 the applicant was brought before the Cracow Regional Prosecutor (Prokurator Wojewódzki), charged with fraud and forgery and detained on remand. Since the applicant reported to the prosecutor that he was suffering from various ailments – in particular, depression – the authorities ordered that he be examined by a doctor. After the examination, which was carried out a few days later, the applicant was found fit to be detained in prison. He was placed in Cracow Remand Centre (Areszt Śledczy).
11. Later, on an unspecified date, the applicant appealed against the detention order. On 21 August 1991 the Cracow Regional Court (Sąd Wojewódzki) dismissed his appeal, finding that there were strong indications that he had committed the offences with which he had been charged. Referring to the results of his medical examination, the court found no circumstances which would justify his release on health grounds.
12. From August 1991 to the end of July 1992 the applicant filed some thirty applications for release and appeals against decisions refusing to release him.
13. In the meantime, in October 1991, the applicant had attempted to commit suicide in prison. From 4 November 1991 he went on hunger strike for an unspecified period.
14. In November 1991 the authorities ordered that the applicant be examined by doctors. The relevant report was made by experts of the Faculty of Forensic Psychiatry of the Jagiellonian University on 25 November 1991. The doctors considered that the applicant was not fit to be detained in an ordinary prison and recommended that, if his detention was to be continued, he should be confined in the psychiatric ward of a prison hospital. The applicant was subsequently taken to Bytom Prison Hospital, where he was placed in a ward for internal diseases and given treatment for his mental condition. The applicant stayed in the hospital for an unknown period. He was then transferred back to Cracow Remand Centre.
15. On 20 January and 27 February 1992 the applicant was examined by specialists in forensic medicine. They considered that he needed psychiatric treatment in prison but that it was not necessary to place him in the psychiatric ward of a prison hospital.
16. On 30 April 1992 a bill of indictment against the applicant was lodged with the Cracow Regional Court. In all, twenty-nine charges were brought against him and his nine co-defendants. The case file comprised nineteen volumes. The prosecution requested the court to hear evidence from ninety-eight witnesses.
17. On 15 June 1992, at the court’s request, doctors from the Cracow Clinic of Psychiatry and the Faculty of Medicine of the Jagiellonian University reported on the applicant’s psychological state. Their report stated, inter alia:
“The patient shows persistent suicidal tendencies. Following the medical examination, we find that he is suffering from a deep syndrome of depression accompanied by thoughts of suicide. In the light of the intensity of the suicidal thoughts and of the fact that he has already attempted to commit suicide, he should receive psychiatric treatment. His detention seriously endangers his life (a grave risk of a further suicide attempt) ...”
18. On 27 July 1992 the Cracow Regional Court quashed the detention order.
19. On 26, 27 and 28 October and on 14 and 15 December 1992 the court held hearings in the applicant’s case. A hearing listed for 8 February 1993 was cancelled because the applicant failed to appear. His lawyer submitted a certificate to the effect that the applicant was on five days’ sick-leave; however, the court ordered that the applicant should, within three days, submit a medical certificate issued by a forensic expert, “failing which preventive measures [środki zapobiegawcze] to ensure his presence at the trial [will] be imposed on him”. The applicant did not submit the required certificate but, on 12 February 1993, informed the court that he was undergoing climatic treatment in Świnoujście and was to stay there until 7 March 1993. On 18 February 1993, since the applicant had not informed the court of the address at which summonses could be served on him, the court ordered that a “wanted” notice be issued with a view to locating and redetaining him on the ground that he had failed to attend hearings. The next hearing scheduled for 16 March 1993 was cancelled due to the applicant’s absence.
20. The detention order of 18 February 1993 had not been enforced by 4 October 1993, when the applicant was arrested by the police in connection with a traffic offence. He was placed in Cracow Remand Centre.
21. The Regional Court listed hearings for 6 October and 15 and 17 November 1993 but cancelled all of them because the applicant’s mental state (in particular, his difficulties in concentrating) did not allow him to participate properly in the trial. In a prison doctor’s note made on 17 November 1993 his state was described as follows:
“Is able to take part in today’s proceedings (with limited active participation on account of [illegible words] difficulty in concentrating).”
According to a further expert report (obtained by the court at the end of 1993) the applicant was “not suffering from mental illness” at that time and his mental state was “not an obstacle to keeping him in detention”.
22. Meanwhile, on 18 October 1993, the applicant’s lawyer had unsuccessfully appealed against the detention order, arguing that the applicant, after his release on 27 July 1992, had received continuous treatment for his severe depression and that his failure to appear before the trial court had been due to his psychological state.
23. Between October 1993 and November 1994 the applicant made twenty-one further unsuccessful applications for release and appealed, likewise unsuccessfully, against each refusal.
24. On 13, 14 and 16 December 1993 the court held hearings. Hearings scheduled for the end of January 1994 were cancelled as, on 26 January 1994, the applicant had attempted to commit suicide by taking an overdose (see paragraphs 63-64 below).
25. The trial continued on 14, 15 and 16 February 1994. The hearings listed for 9 and 10 March 1994 were cancelled because the presiding judge was ill. Subsequent hearings took place on 14, 15 and 16 June 1994. In the meantime the applicant had undergone psychiatric observation in Wrocław Prison Hospital (see paragraph 58 below).
26. The next hearing took place on 11 July 1994. The hearings listed for 12 and 14 July 1994 were cancelled because the applicant had withdrawn the power of attorney granted to his defence counsel. The trial continued on 20, 21 and 22 September, 25 and 26 October, and 14 and 15 November 1994. The hearings listed for 20, 21 and 22 December 1994 were cancelled because one of the applicant’s co-defendants was admitted to hospital at that time.
27. In the meantime, on 17 November 1994, the applicant had complained to the President of the Cracow Regional Court about the length of his detention and the conduct of the proceedings in his case. He complained, in particular, that all of his nine co-defendants had been released, whereas he was still being detained despite the fact that the overall length of his detention had now exceeded two years. He asserted that the minutes of the hearings had not reflected witnesses’ testimony, that the court had failed to enter in the record his and his lawyer’s submissions and had not allowed him to express his version of the facts of the case freely. The criminal proceedings against him, which had to date lasted more than four years, were, to use his term, a “nightmare”.
28. On 7 December 1994 the applicant complained to the court about his psychiatric treatment in prison. The presiding judge asked the prison authorities for explanations. They informed him of the number of medical examinations undergone by the applicant, gave details of them and produced copies of the relevant medical records.
29. At about the same time, the applicant again requested the court to release him on health grounds. He also referred to his family situation, maintaining that his lengthy detention was putting a severe strain on his family. On 8 December 1994 the Cracow Regional Court dismissed the application.
30. On 4 January 1995, on an appeal by the applicant, the Cracow Court of Appeal (Sąd Apelacyjny) upheld the Regional Court’s decision and held that his detention should continue in view of the reasonable suspicion that he had committed the offences in question and the fact that he had been detained on the ground of the risk that he would abscond. The court also found that the situation of the applicant’s family, although difficult, was not a circumstance that could militate in favour of his release.
31. On 25 January 1995 the applicant’s lawyer applied to the Cracow Regional Court to have the detention order quashed and the applicant released under police supervision. He stressed that on 23 January 1995 the applicant had again tried to commit suicide in prison, by attempting to hang himself (see paragraphs 69-70 below). This event, taken together with his chronic depression, had been a clear warning that continuing detention could jeopardise his life. He further pointed out that the applicant had been redetained only because of his absence from hearings. That ground could not warrant his detention any longer because evidence against him had already been heard and keeping the applicant in detention did not serve the purpose of ensuring the proper conduct of the trial.
32. On 13 February 1995 the Cracow Regional Court dismissed that application. It held that, according to a report from the prison authorities, the applicant’s suicide attempt had been of an attention-seeking nature and that the original grounds for his detention were still valid. The relevant report, dated 10 February 1995, reads:
“Further to the [Regional] Court’s request regarding the accused, we confirm that Andrzej Kudła, who remains at your disposal, ... at 4.45 a.m. on 23 January this year, attempted suicide in order to attract attention to his case.
On the basis of information from, and the conclusions of, the duty doctor, psychiatrist and psychologist, it was established that the prisoner suffered from personality disorders manifesting themselves as reactive depression. The result of the prisoner’s action was a slight abrasion of the skin on his neck in the form of a stripe made by the rope after hanging; no neurological changes were observed.
The prisoner carried out this demonstration as he considers that the criminal proceedings are taking a very long time and because he is distancing himself from the charges laid against him.
Despite his emotional problems, he is in control of the situation and is putting pressure on the [prison authorities].
By decision of the Governor, he did not receive disciplinary punishment for his behaviour. Psycho-corrective discussions [were held with him], aimed at explaining the real threats to the prisoner’s health and life arising from his behaviour.
In a subsequent psychiatric consultation (carried out after the suicide attempt) a regression of the symptoms of reactive depression was noted.
He continues to be held in a cell with others because of the possibility of his self-destructive behaviour arising from a subjective feeling of suffering. He is classed as a difficult prisoner and therefore remains under constant observation and under the control of the prison security and medical staff.
[Stamp and signature illegible]”
33. On 25 February 1995 the applicant’s lawyer appealed against the Regional Court’s decision, submitting that the applicant’s mental health had significantly deteriorated and that he was constantly suffering from depression. He requested the court to appoint psychiatric and other medical experts to assess the applicant’s state of health, instead of relying on the assessment made by the prison authorities. He also maintained that the length of the proceedings was inordinate and stressed that the applicant had already spent two years and four months in detention.
34. On 2 March 1995 the Cracow Court of Appeal dismissed the appeal. The court considered that it was not necessary to call medical experts and that the applicant’s detention should continue in order to ensure the proper conduct of the proceedings. Later, between 8 March and 1 June 1995, the applicant made four further unsuccessful applications for release and lodged similarly ineffective appeals against decisions to keep him in detention.
35. On 13, 14 and 15 March, 3, 4 and 5 April, and 4, 5, 30 and 31 May 1995 the Regional Court held hearings and heard evidence from witnesses. Certain witnesses, who had previously failed to appear, were brought to the court by the police.
36. On 1 June 1995 the Cracow Regional Court convicted the applicant of fraud and forgery and sentenced him to six years’ imprisonment and a fine of 5,000 zlotys (PLN). On 2 June 1995 both the applicant and his lawyer filed a notice of appeal.
37. On 1 August 1995 the applicant complained to the Minister of Justice that the trial court had not prepared the statement of reasons for its judgment within the statutory time-limit of seven days. He submitted that the delay had already amounted to two months.
38. At some later date the applicant requested to be released, arguing that his prolonged detention had had very harmful effects on his health and on the well-being of his family. On 14 August 1995 the Cracow Regional Court dismissed his application. On 31 August 1995, on an appeal by the applicant, the Cracow Court of Appeal upheld that decision and observed that his detention was warranted by the severity of the sentence imposed.
39. On another unspecified date the applicant complained to the Minister of Justice about the length of the proceedings in his case, pointing out that the Cracow Regional Court had failed to provide him with the statement of reasons for its judgment within the statutory time-limit. That had significantly prolonged the appellate proceedings. On 28 August 1995 the Head of the Criminal Department of the Ministry of Justice, in reply to that complaint, informed him that it was likely that the statement of reasons for the judgment would exceed two hundred pages and that the failure to comply with the statutory time-limit was due to the fact that the judge rapporteur had been on leave.
40. On 27 September 1995, at the Regional Court’s request, the applicant was examined by forensic psychiatrists from the Collegium Medicum – Faculty of Forensic Medicine of the Jagiellonian University in Cracow. The relevant part of their report reads:
“... As can be seen in the file, and in accordance with the findings of the medical experts, the defendant underwent observation in the psychiatric ward of Wrocław Prison Hospital. In the course of the hospital observation, attempts at suicide and lengthy, vague losses of consciousness were observed. The comprehensive conclusions ... of the report by the psychiatric experts in Wrocław showed that the defendant exhibited personality disorders and a predisposition to situational reactions, which do not militate decisively against him being in prison, provided there is guaranteed outpatient psychiatric care.
[The applicant] explained that he was still in the remand centre and felt very ill, he had a permanent headache located in the apex, radiating to the nape. He very often became breathless and had difficulty breathing, particularly at night. On those occasions he asked the officers for help and they took him to the medical ward. On most occasions the doctor prescribed Relanium [diazepam], which did not relieve his suffering. He claimed that he continued to take Relanium at doses of at least 30 mg at night and 15 mg during the day. This medicine ‘organised him’, as he said, and he could not function without it. He felt constantly tired, did not sleep at night and was annoyed by his continued stay in prison. He considered this preposterous, as he had already ‘overserved’ any sentence he could be given. During a conversation with the defendant, it was observed that he had an abrasion of the epidermis at the base of the neck. When his shirt collar was opened, it was found to be a linear abrasion of the epidermis around the front section of the neck, corresponding to the furrows found on a hanging victim. The defendant explained that ... he had tried to hang himself with a sheet, but had been resuscitated. This was his second attempt at suicide and he could not explain why he behaved in this way. He maintained that he had moments when he felt as if his consciousness was interrupted and that at these times he tried to take his own life, mainly by hanging but also by taking drugs and slashing himself with a razor. He claimed that there was also an occasion when he left home after a family dispute and woke up several weeks later in a boarding house in Świnoujście. He did not understand how he came to be there or what had happened to him during those weeks.
The person under examination is currently making good verbal contact, is oriented, his mood is somewhat subdued, he is tense, irritable and experiences a strong sense of injustice. He states that he is being treated inappropriately. He receives some medicines which do not improve his state of mind and he considers that this treatment only ‘subjects him to psychotropic behaviour’.
After the psychiatric examination, the defendant was sent to the EEG department to undergo a specialist examination.
The results of that examination are attached to the report.
Report
The examination of the defendant Andrzej Kudła, male, 33 years of age, and the analysis of the results of previous examinations and medical and psychological observations performed during hospitalisation lasting several weeks show that his current mental state is the result of his personality disorders and predisposition to decompensation in difficult situations. These disorders are not psychotic in nature but further suicide attempts will prove to be a real threat to his health. For this reason, we also consider that if the legal proceedings require that the defendant spend a further period in prison, he should be sent to a hospital ward and be supervised by specialist staff. He should also be guaranteed access to a psychiatrist and a psychologist.
Expert Expert
Dr Elżbieta Skupień Dr Andrzej Zięba”
41. On 6 October 1995 the applicant received the statement of the reasons for the judgment and, at some date thereafter, lodged an appeal. The case file was transferred to the Cracow Court of Appeal on 14 November 1995.
42. On 22 February 1996 the Court of Appeal quashed the conviction and ordered a retrial on the ground that the trial court had been incorrectly constituted and that there had been numerous breaches of procedural provisions. During the appellate hearing the applicant’s lawyer had asked the court to quash the detention order, but without success.
43. On 11 April 1996 the case file was sent to the Regional Court. The Regional Court subsequently made a severance order and thereafter the applicant was tried separately from several other defendants.
44. On 30 April 1996 the applicant requested that the preventive measure imposed on him be lifted or varied. On 28 May 1996 the Cracow Regional Court gave a decision in which it stated, inter alia:
“... At the present stage of the case, proper conduct of the proceedings can be ensured by imposing preventive measures other than detention. ... The Court therefore quashes the detention order on condition that the applicant puts up bail of PLN 10,000 within one month from the date on which this decision is served on him. ...”
45. The applicant appealed against that decision and requested that the bail be reduced and set in the light of his financial circumstances or, alternatively, that the court secure proper conduct of the trial by ordering him to submit to police supervision.
46. On 11 June 1996 the trial court received a report from a psychiatric expert it had appointed. The expert found that the applicant was in a state of chronic depression accompanied by suicidal thoughts. He considered that the applicant was able to participate in hearings but that continuing detention could jeopardise his life because of the likelihood that he would attempt to commit suicide.
47. On 20 June 1996 the Cracow Court of Appeal dismissed the applicant’s appeal against the decision of 28 May 1996, holding that the sum set for bail was not excessive, given the cost of the damage resulting from the commission of the offences with which he had been charged and the serious nature of those offences. The court attached considerable importance to the fact that after the first order for his detention had been quashed in July 1992, the applicant had absconded and had been redetained on that ground. Bail, the court added, was designed to secure his presence at the trial and to prevent him from committing any further acts aimed at obstructing the proper course of the proceedings. Having regard to all the circumstances of his case, bail had therefore been set at an appropriate level.
48. Shortly afterwards, the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) that the overall length of his detention had now exceeded three years. The complaint was referred to the President of the Cracow Court of Appeal, who on 12 July 1996 sent a letter to the applicant. The relevant part of that letter reads:
“... You were indicted for fraud and forgery on 30 April 1992. The bill of indictment concerned ten co-defendants and evidence from ninety-eight witnesses was to be obtained. The proceedings were delayed because you had been in hiding until your subsequent detention in October 1993. You have also made numerous applications for release. ... The delay in the proceedings between the date of the trial court’s judgment and the date on which the case file was sent to the Court of Appeal was justified by the size of your case file and the length of the statement of reasons for the judgment (29 volumes and 140 pages respectively). ... The statement of reasons was ready before 16 August 1995 and was sent out on 16 September 1995 because the judge rapporteur was on leave. The only delay occurred in respect of handling your application for release of 30 April 1996[;] it was examined on 28 May 1996 since from 1 May to 5 May 1996 there had been a public holiday. ...”
49. Meanwhile, the applicant had again applied to the Cracow Regional Court to release him under police supervision or to reduce the bail set by the court on 28 May 1996. On 2 July 1996 the court refused the application. The applicant’s lawyer appealed against that decision and argued that in the light of the psychiatric report of 11 June 1996 the applicant should be released because his life was in danger.
50. On 18 July 1996 the Cracow Court of Appeal dismissed the appeal, pointing out that the danger to the applicant’s life was “not absolute” because he could obtain psychiatric treatment in prison. The court considered that, given the applicant’s behaviour after his release in July 1992, his detention should continue in order to secure the proper course of the trial unless he put up bail of PLN 10,000.
51. On 31 July 1996 the applicant again requested the Regional Court to reduce the amount of security or to release him under police supervision. He submitted that he did not have sufficient financial resources to pay such a substantial sum of money. On 19 August 1996 the court dismissed his application as manifestly ill-founded. It observed that the applicant’s arguments concerning the question of bail had been an “unjustified dispute with the institutions of justice” and that bail could be put up not only by the applicant himself but also by third parties.
52. Later, the applicant requested the Regional Court to release him so that he could provide the required security. On 10 September 1996 the court dismissed this request, holding, inter alia:
“... It is logical that [the applicant] should be released after bail is paid. The accused’s request to reverse the sequence of events is against the rules of procedure and common sense and must therefore be dismissed. ...”
53. The retrial was to start on 10 October 1996 but was postponed because one of the applicant’s co-defendants had meanwhile been detained in connection with other criminal proceedings against him.
54. On 29 October 1996 the Cracow Regional Court quashed the detention order after the applicant’s family had paid bail of PLN 10,000 to the court.
55. The next two hearings were listed for 18 March and 17 April 1997 but the trial was again postponed as another co-defendant was ill. Subsequent hearing dates were set for 6, 21 and 23 October 1997. The Regional Court later listed hearings for the following dates in 1998: 15 January, 26 February, 19 March, 6 and 28 April, 2, 22 and 24 June, 13 July, 23 September, 3 and 30 October, and 17 and 24 November. On 4 December 1998 the court gave judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment.
56. He appealed on 19 April 1999. On 27 October 1999 the Cracow Court of Appeal varied the trial court’s judgment and reduced the applicant’s sentence to five years’ imprisonment.
57. Subsequently the applicant lodged a cassation appeal (kasacja). On 24 February 2000 the Cracow Court of Appeal, having found that the applicant had complied with the relevant formal requirements for such appeals, forwarded his appeal to the Supreme Court (Sąd Najwyższy). The proceedings in the Supreme Court are still pending.
58. The applicant was held at Cracow Remand Centre from 4 October 1993 to 29 October 1996, with only one interruption: on 9 March 1994 he was transferred to Wrocław Prison Hospital where, until 26 May 1994, he underwent psychiatric observation ordered in other criminal proceedings against him.
59. The medical register shows that the applicant was examined by a doctor shortly after being detained. On 6 October 1993 the applicant asked to be examined by a psychiatrist. The examination took place on 15 October. The applicant was diagnosed as suffering from reactio situatione (situational reaction). He had been examined by or had consulted a prison doctor on three previous occasions.
60. In November 1993 the applicant was examined by prison doctors eight times. It was recorded that he was suffering from chronic insomnia and lack of appetite and, subsequently, from recurring headaches, dizziness and difficulty in concentrating.
61. On 10 December 1993 the applicant was examined by a psychiatrist. He was diagnosed as suffering from personality disorder and depressive reaction. During that month, on four further occasions, he consulted or was examined by doctors in the prison outpatient ward. He complained of insomnia and requested a change of medicine. On 24 December 1993 a doctor recommended that he be examined by a psychiatrist.
62. On 4 January 1994 the applicant started to complain about darkness in front of his eyes and headaches.
63. On 26 January 1994 the applicant attempted suicide by taking an overdose. The doctor on duty made the following entry:
“Patient unconscious, no verbal contact. ... From the report given by [his cell-mates] it transpires that yesterday he took the evening dose of medication ... nobody saw him taking any other medication.
Diagnosis: intoxicatio medicamentosa acuta per os susp. [suspected acute drug poisoning by mouth].
Medical recommendations: hospital observation and urgent psychiatric treatment.”
64. The applicant was admitted to the prison hospital and stayed there from 27 to 28 January 1994, the diagnosis being “status post intoxicationem medicamentosam”. He underwent several medical tests (blood-cell morphology, toxicological examination of urine, electrocardiography).
65. On 27 February 1994 the applicant was examined by a psychiatrist and diagnosed as suffering from neurotic disorder.
66. From 26 May 1994 (the date of his return from Wrocław Prison Hospital) to the beginning of November 1994 the applicant consulted the prison outpatient doctors on thirteen occasions. He complained mainly about difficulty in getting to sleep and recurring headaches lasting several days but also about cold and skin ailments. In September 1994 he asked several times for an appointment with a psychiatrist. He was examined by a psychiatrist on 9 November 1994 and diagnosed as having neurotic disorder.
67. In the meantime, on 5 November 1994, the prison doctor on duty had asked for a further appointment with a psychiatrist for the applicant. The psychiatrist examined the applicant on 7 December 1994 and confirmed his previous diagnosis. The register records that the applicant complained about dizziness and sleep disorder.
68. On 2 January 1995 the doctor on duty requested a follow-up appointment with a psychiatrist for the applicant. On 11 and 13 January 1995 the doctor noted that the applicant had not reported back to him. On 16 January 1995 the applicant was given an unspecified medicine.
69. On 23 January 1995 the applicant attempted to commit suicide by hanging himself. On that day doctors made two notes in the medical register. The relevant part of the first note, written by the doctor on duty, reads:
“At approximately 4.30 a.m. he made a conspicuous attempt to commit suicide by hanging himself on a sanitary appliance on the wall. Blood pressure 110/60 ... In the left nostril was a small amount of foaming blood. Abrasions of the epidermis were found on the neck consistent with the scars of a hanging victim. ... He does not want to communicate orally. ...
Diagnosis: conspicuous attempt to commit suicide by hanging.
Medical recommendations: psychiatric test ...”
The second note, made by a specialist in internal medicine, reads as follows:
“General condition good. ... Able to communicate logically. He stated that this had not been his first attempt at suicide.
Diagnosis: condition following attempted suicide.
Medical recommendations: psychiatric test. Admission to hospital for treatment not required.”
70. On 24 January 1995 the applicant was examined by a psychiatrist, who made the following report:
“Good verbal communication, emotions satisfactory. ... He was in the psychiatric ward of Wrocław Prison Hospital ... to June 1994. Attempted suicide: ‘I can’t take any more.’ He is anxious. Disturbed sleep, loss of appetite, nausea, vomiting. The case has lasted three years – without a judgment, he had no previous convictions. He was frightened by his actions: ‘I don’t know what came over me.’
Diagnosis: condition following attempted suicide by hanging. Situational depressive reaction.”
71. On 3 February 1995 the applicant was again examined by a psychiatrist. The doctor’s note reads:
“Good contact. Full orientation, balanced mood. No psychotic symptoms. Complains: ‘I feel unwell, I have had enough of this, I do not sleep well, I will hang myself.’
Diagnosis: personality disorder; auto-aggressive reaction.”
72. In March 1995 the applicant was examined by doctors six times. Two of those examinations were carried out by psychiatrists. The relevant part of a medical certificate issued after the first examination reads:
“Cracow, 7 March 1995
Medical Certificate
As to the state of health of the prisoner
Prisoner’s complaints, previous illnesses and operations: He is currently submitting the following complaint: difficulty concentrating, psychomotor agitation, feelings of inner tension, recurring pain in the epigastric region. Medical history shows frequent attempts at suicide, including by hanging and drug overdose. He is under regular psychiatric supervision. ...
Psychiatric consultation 7 March 1995. Situational reaction with depressive features. Fit to take part in court proceedings. ...”
After the second examination, carried out on 31 March 1995, a doctor noted:
“Good contact, full orientation, dysphoric mood. Complaints – tension ... sleep disorder, difficulty in concentrating.
Diagnosis: neurotic disorder.”
73. From the beginning of April to the end of December 1995 the applicant, either at his own request or at the request of prison doctors, was examined by psychiatrists at least once a month. Apart from that, he received treatment for other ailments. As regards the applicant’s mental state, it appears from the medical register that he repeatedly complained of depression, sleep disturbances, tension, difficulty in concentrating, irritation and lack of improvement of his condition.
74. In the period from the beginning of January to the end of August 1996 the applicant was examined by doctors on thirty-two occasions; twelve examinations were carried out by psychiatrists.
75. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
76. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society.
...”
On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 provided:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.
Article 213 § 1 provided:
“A preventive measure [including detention on remand] shall be immediately lifted or varied if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”
Article 225 stated:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.”
The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.
Finally, Article 218 stipulated:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would entail excessively burdensome effects for the accused or his family.”
77. Under Polish law “release on bail” does not mean release on condition that a detainee undertakes to pay a specified sum to the court if he fails to appear before it, but release on condition that the required security is paid to the court by either the detainee himself or sureties before the detainee is released.
78. Article 219 of the Code dealt with medical treatment of an accused during detention on remand. It provided the following:
“If the state of health of an accused requires treatment in a medical establishment, he cannot be further detained except in such an establishment.”
79. Article 214 of the Code of Criminal Procedure provided that an accused could at any time lodge an application for release. It read:
“An accused may at any time apply to have a preventive measure lifted or varied.
Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.”
80. Article 371 § 1 of the Code laid down a time-limit for preparing the statement of reasons for the judgment of the trial court where an appeal had been brought. The relevant provision read:
“The statement of the reasons for the judgment shall be prepared within seven days from the date on which a notice of appeal has been lodged; in a complex case, when it is impossible to prepare it within the prescribed time, the president of the court may extend that time for a specified period ...”
81. The Code set out two principal appellate remedies, called “appellate measures”: an appeal, which, under Articles 374 et seq., could be brought solely against judgments and an interlocutory appeal which, under Articles 409 et seq., could be brought against decisions other than judgments and against orders for preventive measures. There was (and still is) no specific provision expressly providing for remedies against inactivity on the part of the judiciary in the course of criminal proceedings.
VIOLATED_ARTICLES: 13
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
NON_VIOLATED_ARTICLES: 3