ITEMID: 001-57577
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF SILVER AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 9. The principal complaint of all seven applicants was that the control of their mail by the prison authorities constituted a breach of their right to respect for correspondence and of their freedom of expression, guaranteed by Articles 8 and 10 (art. 8, art. 10) of the Convention, respectively. They also alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid breaches. In addition, Mr. Silver claimed that he had been denied access to the courts, in violation of Article 6 § 1 (art. 6-1), on account of the refusal of two petitions for permission to seek legal advice.
10. The first applicant, Mr. Reuben Silver, was born in 1915 and was a United Kingdom citizen. When he lodged his application with the Commission (20 November 1972), he was detained in prison in England. He was released from prison in February 1974 and died in March 1979.
11. In the period from January 1972 to March 1973, 7 of Mr. Silver’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 59, 62, 63, 66, 68 and 69 below.
This applicant did not complain through the internal prison channels (see paragraphs 51-53 below) of the stopping of his correspondence; he claimed that the prison governor prevented him from raising each incident by way of petition to the Home Secretary because he, Mr. Silver, already had petitions outstanding at the material times.
12. On 20 November 1972, Mr. Silver petitioned the Home Secretary for permission to seek legal advice concerning allegedly negligent treatment in prison and also complained, inter alia, about his medical and dental treatment. Permission was refused on 18 April 1973. On 30 July 1973, he submitted another petition in which he referred to his earlier petition and requested leave to seek legal advice about his dental treatment. The second petition was apparently granted on 1 October 1973, but Mr. Silver claimed that he was never so informed. At the time of both petitions, prisoners could not seek legal advice about prospective civil proceedings without the Home Secretary’s leave (see paragraph 32 below).
13. The second applicant, Mr. Clifford Dixon Noe, is a citizen of the United States of America, born in 1930. When he lodged his application with the Commission (1 February 1973), he was serving a sentence of imprisonment in England after being convicted of fraud. He was released from prison on 31 January 1977 and subsequently deported from the United Kingdom.
14. In the period from May 1972 to April 1975 and for the reasons indicated in paragraphs 6O, 61, 67 and 71 below, 4 of Mr. Noe’s letters were stopped by the prison authorities and the posting of a further letter was delayed for three weeks.
This applicant apparently complained through the internal prison channels of this action, other than the stopping of his letter no. 9, but without success.
15. The third applicant, Mrs. Judith Colne, is an Australian citizen, born in 1927. She is a schoolteacher and resides in London.
16. Around May 1974, Mrs. Colne began correspondence with a Mr. Michael Williams, the brother of an imprisoned friend of hers. Mr. Williams was then detained in H.M. Prison Albany and was a "category A" prisoner, this being the security category reserved for persons who, if they escaped, would be highly dangerous to the public or the police or to the security of the State. Following his transfer in July 1974 to H.M. Prison Hull, their correspondence was noticed and stopped for the reason indicated in paragraph 59 below. It resumed, unnoticed, following his further transfer to H.M. Prison Wakefield in August 1974 but was discovered during the following month; thereafter, and for the same reason, all correspondence between them was prevented.
This applicant raised the matter, both directly and through a Member of Parliament, with the Home Secretary, but without success.
17. The fourth applicant, Mr. James Henry Tuttle, is a United Kingdom citizen, born in 1914. When he lodged his application with the Commission (20 March 1975), he was detained in prison in England. He was released on licence on 5 January 1981.
18. In March 1975, 2 of Mr. Tuttle’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 62, 64 and 68 below.
This applicant apparently complained, in a petition to the Home Secretary, of the stopping of his correspondence, but without success.
19. The fifth applicant, Mr. Gary Cooper, is a United Kingdom citizen, born in 1946. When he lodged his application with the Commission (28 October 1974), he was serving a sentence of imprisonment in England. He was released on 14 December 1981, but was later imprisoned again.
20. In the period from April 1974 to March 1976, 14 of Mr. Cooper’s letters were stopped by the prison authorities for the reasons or in the circumstances indicated in paragraphs 60, 65, 67 and 71 below.
This applicant apparently complained unsuccessfully through the internal prison channels of the stopping of 6 of the 14 letters, namely nos. 20, 22, 23, 24, 26 and 27.
21. The sixth applicant, Mr. Michael McMahon, is a United Kingdom citizen, born in 1944. When he lodged his application with the Commission (8 July 1975), he was serving a sentence of imprisonment in England, as a "category A" prisoner, after being convicted of murder. He was released on 18 July 1980.
22. In the period from March 1975 to February 1976, 11 of Mr. McMahon’s outgoing letters were stopped by the prison authorities and one letter to him was withheld.
This applicant submitted three petitions to the Home Secretary, of which one was successful: it was admitted that a letter to the Archbishop of Canterbury (no. 33) should not have been stopped as the addressee was a Member of Parliament; the letter was accordingly sent and Mr. McMahon withdrew his complaint in this respect. The reasons for the stopping or withholding of the remaining 11 letters are indicated in paragraphs 59, 61, 66 and 70 below.
23. The seventh applicant, Mr. Desmond Roy Carne, is a United Kingdom citizen, born in 1945. When he lodged his application with the Commission (5 April 1975), he was serving a sentence of imprisonment in England after being convicted of theft. He was released on 30 August 1977.
24. In the period from November 1974 to May 1976, 22 of Mr. Carne’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 59, 60, 64, 66, 67 and 68 below.
This applicant apparently complained, either through the internal prison channels or by having the matter raised with the Parliamentary Commissioner for Administration, of the stopping of each of these letters, but to no avail.
25. The control over and responsibility for prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47(1) of that Act to make rules "for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein". Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves.
The rules made by the Home Secretary currently in force, a number of which relate to prisoners’ correspondence, are the Prison Rules 1964, as amended ("the Rules").
26. With a view to securing uniformity of practice throughout prison establishments, the Home Secretary also issues to prison governors management guides or directives in the form of Standing Orders ("Orders") and Circular Instructions ("Instructions"). Unless otherwise authorised, governors are required to comply with these directives, but they do not have, or purport to have, the force of law.
At the time of the events giving rise to this case and until 30 November 1981, both Orders and Instructions contained, in addition to directives on the control of prisoners’ correspondence, internal rules and guidance of a general nature concerning the day to day administration of the prison. The Orders and Instructions were made available to Members of both Houses of Parliament for reference but not to the public or prisoners, although the latter received, by means of cell cards, information about certain aspects of the control of correspondence.
With effect from 1 December 1981, the directives on prisoners’ correspondence were substantially revised. In addition, revised Orders relating to correspondence have been published in their entirety, matters of a management or administrative nature which do not concern a prisoner’s entitlement to correspond and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions. The Rules themselves have not been amended, although the Government indicated at the hearing before the Court that as soon as practicable Rule 34(8) (see paragraph 29 below) would be repealed in so far as it affected correspondence.
27. As far as prisoners’ correspondence is concerned, the Home Secretary’s directives to governors were and are intended to serve a dual function: on the one hand, to circumscribe the discretion conferred on governors by the Rules, and, on the other, to state the manner in which the Home Secretary has decided in certain respects to exercise his own discretionary powers thereunder. The principal provisions which the Rules contain on the subject are set out below, accompanied by a summary of:
(a) the relevant Orders and Instructions in force until 30 November 1981; and
(b) the changes that took effect after that date.
28. The following Rules, containing general provisions on the control of correspondence, came into operation on 25 March 1964 and are still in force:
"33(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.
...
(3) Except as provided by these Rules, every letter or communication to or from a prisoner shall" (or, with effect from 1 June 1974, "may") "be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length."
29. The following basic Rules, both concerning the identity of persons with whom a prisoner may correspond, came into effect on 25 March 1964 and are still in force:
"33(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.
34(8) A prisoner shall not be entitled under Rule 34" - which regulates the quantity of correspondence - "to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State."
30. Under Rule 34(8), as supplemented by Orders 5A 22, 5A 23 and 5A 30, prisoners had to seek the Home Secretary’s leave to correspond with any person other than a close relation; they were, however, also normally allowed, without the necessity to seek such leave, to correspond with other relatives or existing friends, but the governor had discretion to forbid such correspondence on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. Governors had a discretion - which they would have been unlikely to exercise in favour of a "category A" prisoner, such as Mr. Williams or Mr. McMahon - to allow communications with other persons not personally known to the prisoner before he came into custody, but generally he could not write to other prisoners, ex-prisoners, marriage bureaux, "Monomark addresses" or specified categories of pen friends.
In addition, standing leave had been granted for correspondence falling into certain special categories, as explained in paragraphs 31-36 below.
31. With effect from 1 January 1973, uncensored correspondence relating to civil or criminal proceedings to which the prisoner was already a party was permitted under Rule 37A(1), which is still in force and reads:
"A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33(3) of these Rules."
32. Until 6 August 1975, inmates had to petition the Home Secretary for permission to seek advice about, or give instructions for, the institution of civil proceedings (with the exception of certain divorce cases). On that date, Instruction 45/1975 introduced changes which were subsequently reflected in Rule 37A(4) and directions made by the Secretary of State thereunder, in the shape of Order 17A. Rule 37A(4), which came into operation on 26 April 1976 and is still in force, reads:
"Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings."
Order 17A provided, inter alia, that:
(i) the inmate had to have sought a solicitor’s advice before he would be permitted to institute proceedings;
(ii) at each stage a written application, with reasons, had first to be made to the prison governor for the necessary facilities; they had to grant immediately, except that, in the case of prospective civil proceedings against the Home Office "arising out of or in connexion with" the imprisonment, the "prior ventilation rule" (see paragraph 47 below) generally applied.
Correspondence in this category was otherwise subject to the restrictions on contents mentioned at paragraphs 41-47 below.
33. Prisoners were free to communicate with their Members of Parliament, subject to the restrictions on contents mentioned at paragraphs 41-47 below.
34. Prisoners who were foreign nationals or citizens of the Irish Republic or a Commonwealth country were free to communicate with the accredited representatives of their countries in the United Kingdom, subject to the restrictions on contents mentioned at paragraphs 41-47 below.
35. Under Order 5A 31(2) b., a prisoner could, without first seeking leave from the Home Secretary or the prison governor, write to the National Council for Civil Liberties, "Justice", "Release" or the Howard League for Penal Reform to seek legal advice about his conviction and sentence, or about general matters. He could, in addition, write to these organisations to ask for legal proceedings to be instituted and, although originally he could not seek legal advice from them about any matter relating to his prison treatment, this was subsequently allowed by Instruction 38/1977, subject however to the "prior ventilation rule" (see paragraph 47 below). In the two latter cases, however, the prisoner had first to follow the procedures introduced by Instruction 45/1975 and then enshrined in Order 17A (application to the governor for facilities; see paragraph 32 above).
Correspondence in this category was otherwise subject to the restrictions on contents mentioned at paragraphs 41-47 below.
36. Special provisions applied to applications to the Commission; in particular, the Home Secretary’s leave was required neither for their submission nor for correspondence with legal advisers relative thereto, and the "prior ventilation rule" did not apply.
37. Most of the restrictions which the earlier Orders and Instructions contained on the identity of correspondents have now been abolished. Although the relevant Rules have not themselves been amended, the revised Orders (nos. 5B23-5B30) state that, provided the provisions concerning the contents of correspondence (see paragraph 48 below) are observed, a prisoner may communicate with any person or organisation, subject to certain exceptions of which the principal are:
(a) recipients of correspondence (other than spouses) who have requested that no further letters be sent;
(b) other prisoners, who are not relatives, where there is reason to believe that correspondence would seriously impede rehabilitation or where the prevention of communication is desirable in the interests of security or good order or discipline;
(c) ex-prisoners, where there is reason to believe that correspondence would seriously impede rehabilitation;
(d) a person (other than a close relative) or organisation believed to be planning or engaged in activities that seriously threaten the security or good order of a prison establishment.
38. The following basic Rules concerning the amount of correspondence which a prisoner may conduct came into operation on 25 March 1964 and are still in force:
"34(1) An unconvicted prisoner may send and receive as many letters ... as he wishes within such limits and subject to such conditions as the Secretary of State may direct, either generally or in a particular case.
(2) A convicted prisoner shall be entitled
(a) to send and to receive a letter on his reception into a prison and thereafter once a week;
...
(3) The governor may allow a prisoner an additional letter ... where necessary for his welfare or that of his family.
(4) The governor may allow a prisoner entitled to a visit to send and to receive a letter instead.
...
(6) The visiting committee or board of visitors" (or, with effect from 1 January 1972, "The board of visitors") "may allow a prisoner an additional letter ... in special circumstances ...
(7) The Secretary of State may allow additional letters ... in relation to any prisoner or class of prisoners."
39. In addition to his entitlement under Rule 34(2) to send - at public expense - and to receive one letter per week, a convicted prisoner was allowed to send at his own expense at least one extra letter per week, and to receive a reply (Order 5A 3(8) and Instruction 155/1968).
The prison authorities’ discretion under Rules 34(3), (6) and (7) to allow further letters was exercised where possible.
These quantitative restrictions did not apply to remand prisoners (Rule 34(1)), but they were in most other respects subject to the same regulations on correspondence as convicted prisoners.
40. The revised Orders (nos. 5B7 and 5B14) do not alter the basic entitlement but specify that additional extra letters should be allowed as far as practicable.
41. In addition to Rule 33(3), the text whereof appears at paragraph 28 above, the following basic Rule concerning the contents of prisoners’ correspondence came into operation on 25 March 1964 and is still in force:
"34(8) A prisoner shall not be entitled under Rule 34" - which regulates the quantity of correspondence - "to communicate with any person in connection with any legal or other business ... except with the leave of the Secretary of State."
42. Rules 33(3) and 34(8) were supplemented as follows by various Orders and Instructions.
43. Under Order 5A 31, a convicted prisoner was specifically prohibited from making representations on matters connected with his trial, conviction or sentence to any judge, public authority, representative of any Commonwealth or foreign government (subject to certain exceptions for prisoners who were foreign nationals or citizens of another Commonwealth country) or unofficial organisation (subject again to certain specific exceptions). Such representations could, however, be made to the Home Secretary.
44. Under Order 5A 24, prisoners were not allowed to send letters requesting anyone to make on their behalf a communication which they would not be permitted to make directly, or certain other letters which would circumvent the regulations.
45. (a) Orders 5A 26(4) a. and b. and 5A 29 prohibited the inclusion in outgoing letters (other than those to Members of Parliament or Consular or Commonwealth officials, to which special rules applied) of any of the following matters:
(i) objectionable references to persons in public life;
(ii) discussion of crime and criminal methods or of the offences of others;
(iii) any complaint about the courts, the police and the prison authorities that was a deliberate and calculated attempt to hold them up to contempt;
(iv) threats of or incitement to violence;
(v) material intended for publication or for use on wireless or television (this rule was relaxed as regards certain specialised publications);
(vi) grossly improper language;
(vii) statements about private individuals which were patently scandalous or libellous or otherwise deliberately calculated to do them harm;
(viii) begging requests for money or valuable property;
(ix) complaints about prison treatment;
(x) allegations against prison officers;
(xi) attempts to stimulate public agitation or petition.
Similar regulations applied to incoming letters (Order 5A 26(4) d.).
As recorded in paragraphs 32 and 35 above, the prohibition on the inclusion of complaints about prison treatment or allegations against prison officers did not apply to certain correspondence with legal advisers (after 6 August 1975) and with specified organisations (after 26 August 1977), provided always that the "prior ventilation rule" (see paragraph 47 below) had been satisfied.
(b) Until 28 November 1975, a broadly similar list of prohibited contents applied to letters to Members of Parliament, except that they could contain complaints about prison treatment or against prison staff in respect of which the "prior ventilation rule" had been observed. Thereafter, a letter to a Member of Parliament would have been stopped only if it included an unventilated complaint of that kind (Order 5C, as amended by Instruction 62/1975). At the time of the change of practice, a notice summarising the regulations concerning letters to Members of Parliament was issued for the information of prisoners. It contained the following passage:
"A complaint or request about prison treatment should be made to the Governor, Board of Visitors or visiting officer, or by petition to the Home Secretary .... A complaint against a member of staff should be made to the Governor. A complaint on these matters may not be made to a Member of Parliament before official action is complete."
(c) Letters from convicted prisoners who were foreign nationals or citizens of the Irish Republic or a Commonwealth country to Consular or Commonwealth officials were subject to the same rules as to contents as letters to Members of Parliament until 3 September 1975. On that date this restriction was abolished (Order 5A 20, as amended by the Instruction of 3 September 1975).
46. With the exception of certain correspondence in connection with legal business for which standing leave had been granted as explained in paragraphs 31, 32 and 35 above, Rule 34(8) prohibited any communications on any legal or other business without the prior leave of the Home Secretary. The conduct of business by prisoners was further dealt with by Orders 1C 4-6, the basic provision being that "an inmate" - whether convicted or not - "may not conduct any business activity in prison, but should be allowed reasonable facilities for arranging its conduct on his behalf". However, subject to this general rule, governors had discretion to allow an inmate to deal with certain limited personal business matters, in particular to dispose of private property, to sign a cheque or to make or sign a will or other document. The broad effect of the regulations was that, although a prisoner could not participate personally on a continuing basis in a business concern, he was allowed to make arrangements to protect the value, for his own and his family’s benefit, of his personal property and any business interests.
47. A complaint about prison treatment or an allegation against a prison officer could be contained or referred to only in correspondence with legal advisers, specified organisations, Members of Parliament or Consular or Commonwealth officials, as indicated in paragraph 45 above. Moreover, under the "prior ventilation rule" - set out, in particular, in Order 17A - a letter in any of these categories which alluded to such a matter would, with certain exceptions, be stopped unless and until the prisoner had ventilated his complaint through the normal internal channels (petition to the Home Secretary, or application to the Board of Visitors, a visiting officer of the Home Secretary or the prison governor) and been given a definitive reply. Thereafter, and in general irrespective of the outcome, the correspondence could proceed.
48. Rules 33(3) and 34(8) are now supplemented by the new Orders 5B34 and 5B40. The current position is as follows.
(a) The prohibition on representations about trial, conviction or sentence (see paragraph 43 above) is abolished.
(b) Provisions similar to the earlier Order 5A 24 (designed to prevent the evasion or circumvention of the regulations - see paragraph 44 above) remain in force.
(c) The list of prohibited contents (see paragraph 45 (a) above) has been revised; the main items which may now not be included in incoming or outgoing letters may be summarised as follows:
(i) material which would jeopardise prison security;
(ii) material which would assist or encourage the commission of a disciplinary or criminal offence;
(iii) material which could jeopardise national security;
(iv) descriptions of the making of certain destructive devices;
(v) certain obscure or coded messages;
(vi) threats of violence or damage to property likely to induce fear in the recipient;
(vii) blackmail or extortion;
(viii) certain indecent or obscene material;
(ix) information which would create a clear threat or present danger of violence or physical harm to any person;
(x) complaints about prison treatment, in respect of which the "simultaneous ventilation rule" (see paragraph 49 below) has not been observed;
(xi) material initiating a private prosecution;
(xii) certain specified material intended for publication or for use by radio or television;
(xiii) in the case of a convicted prisoner, material constituting the conduct of a business activity, which expression is defined so as to exclude certain specified personal transactions.
The foregoing list does not apply to correspondence with Consular and Commonwealth officials or, with the exception of item (x), to correspondence with Members of the United Kingdom Parliament (new Orders 5D5 and 5E6).
As regards item (xiii) above, it remains the basic rule that inmates may not conduct any business activity from prison, but this no longer applies to unconvicted prisoners who may correspond without restriction about such matters (revised Orders 1C 4 and 1C 5).
49. The "prior ventilation rule" (see paragraph 47 above) has now been replaced by the "simultaneous ventilation rule", set out in Order 5B34 j. A complaint about prison treatment may be referred to in correspondence as soon as it has been raised through the prescribed procedures and without the prisoner’s having to await the outcome of the internal enquiry. The rule does not apply to complaints not requiring investigation or to general complaints in respect of which no corrective or remedial action is possible (for example, regarding overcrowding): these may be mentioned in correspondence without any internal ventilation. Moreover, the effect of the new Orders is that, in contrast to the earlier position, a duly ventilated complaint may now be referred to in any letter, irrespective of the identity of the correspondent.
50. Except as otherwise provided by the Rules (for example, Rule 37A(1); see paragraph 31 above) and until 1 June 1974, all communications to or from a prisoner had, according to Rule 33(3), to be read and examined, although Order 5A 26 gave prison governors a discretion to subject specified domestic correspondence to no more than a cursory examination. With effect from that date, Rule 33(3) was amended to make reading and examination optional, but governors remained and remain subject to the Home Secretary’s directives in this respect. Thus, at the present time, outgoing domestic correspondence is normally not to be read or examined at open establishments; elsewhere, all correspondence is to be examined but not necessarily read (new Order 5B32).
A prisoner whose letter is stopped on account of its contents will be given the opportunity of rewriting it. Where the cause of the stoppage is the addressee’s identity, the prisoner may use his entitlement to that letter to write to another person.
51. An inmate who is aggrieved by a decision to stop or censor his correspondence may complain to the prison governor, the Board of Visitors or a visiting officer of the Home Secretary or he may petition the Home Secretary himself. A prisoner may ventilate his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes.
52. As far as the Board of Visitors is concerned, it may examine the compatibility of the decision complained of with the Rules and the Home Secretary’s directives. It will draw the governor’s attention to any irregularity, or report to the Home Secretary; although its powers are advisory in character, its advice will be implemented save in exceptional circumstances.
53. Inmates have the right to submit petitions to the Home Secretary about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment.
On a petition being made by a prisoner, complaining of a decision of the prison authorities to stop or censor his correspondence, the Home Secretary would, if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice and to avoid arbitrary interference with correspondence.
Prior to 1 December 1981, directives concerning the submission of petitions were contained in Orders 5B 1-16. It was, in particular, provided that, with certain exceptions, a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition (Order 5B 12(2)).
With effect from 1 December 1981, the provisions of Order 5B 12(2) have been relaxed by new Orders 5C9 and 5C10. A further petition may now be submitted if a month has elapsed since the submission of the previous petition. Moreover, even though an earlier petition be outstanding, a prisoner may petition forthwith on certain specified matters, including interference with his correspondence.
54. Complaints concerning the control of correspondence may also be raised with the Parliamentary Commissioner for Administration (the Ombudsman). Under section 5 of the Parliamentary Commissioner Act 1967, this officer, who is appointed by the Crown, may, if so requested by a member of the House of Commons, investigate any action taken in the exercise of administrative functions by specified authorities (including the Home Office) where a complaint has been made by a member of the public who claims to have sustained injustice in consequence of "maladministration". Such an investigation may generally not be conducted where court proceedings are available. Section 12 of the Act expressly provides that the Ombudsman may not question the merits of a discretionary decision taken without maladministration; accordingly, his jurisdiction does not extend to interferences with a prisoner’s correspondence effected pursuant to a correct exercise of a discretion conferred by the Rules or the Home Secretary’s directives. Moreover, he cannot grant direct relief for maladministration since he is limited to reporting the results of his investigation to the Member of Parliament who requested it, the authority concerned and, in certain circumstances, each House of Parliament (section 10).
Until 23 August 1979, prisoners could communicate with the Ombudsman only through a Member of Parliament who was willing to assist. Although this remains the normal method of approach, they may now write directly; however, their letters to the Ombudsman are subject to the same restriction with regard to the simultaneous ventilation of complaints about prison treatment as correspondence with Members of Parliament (see paragraphs 48 and 49 above) and he still cannot proceed with an investigation unless the prisoner’s constituency Member so requests.
55. The exercise by the prison authorities of their powers under the Rules to control correspondence is subject to the supervisory control of the English courts by way of proceedings for judicial review. In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to send or receive correspondence (for example, Rule 37(A)1; see paragraph 31 above), and to ensure that the discretion to restrict correspondence, conferred on the authorities by the Rules, is not exercised arbitrarily, in bad faith, for an improper motive or in an ultra vires manner.
The Court notes in this context that in Raymond v. Honey 1982 1 All England Law Reports 759, Lord Wilberforce pointed out that it was a principle of English law that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication".
56. Sanctions may be imposed on prisoners who commit disciplinary offences. Under Rule 47, the latter include making "any false and malicious allegation against an officer" and repeatedly making "groundless complaints", be it in a petition, correspondence or otherwise. An inmate who makes an allegation against a member of the prison staff is to be warned accordingly (Instruction 88/1961, now replaced by unpublished Instruction 14/1980).
57. The present case arises from the stopping of 62 letters written by the applicants, that is to say 7 by Mr. Silver, 4 by Mr. Noe, 3 by Mrs. Colne, 2 by Mr. Tuttle, 14 by Mr. Cooper, 10 by Mr. McMahon and 22 by Mr. Carne; in the case of Mrs. Colne, the 3 letters are examples of the correspondence which she was prevented from continuing with Mr. Williams. In addition, Mr. Noe complained of delay in posting one of his outgoing letters and Mr. McMahon of the withholding of one of his incoming letters.
The Government informed the Court that the total number of letters sent and received by prisoners in England and Wales in a year was of the order of ten million. An indication of the total volume of the correspondence of the applicants in this case who were in prison is given by the fact that, in the under-mentioned periods (being periods for which records are most readily available), the number of letters written by them and posted by the prison authorities in the form in which they were written was: Mr. Silver - 419 (20 March 1968 to 2 August 1973); Mr. Noe - 149 (14 November 1972 to 15 April 1975, during which time he was at liberty for almost two years); Mr. Tuttle - 94 (2 January to 29 December 1975); Mr. Cooper - 299 (8 August 1974 to 24 June 1976); Mr. McMahon - 492 (5 December 1974 to 9 February 1977); Mr. Carne - 480 (14 October 1974 to 16 June 1976).
58. The provisions under which, pursuant to the law and practice applicable before 1 December 1981, the 64 letters in question were stopped or delayed are indicated below. In those cases where a letter was stopped for more than one reason, the subsidiary ground or grounds are also stated.
The texts of 59 of these letters are set out in Appendix III to the Commission’s report, copies of the remaining 5 not being available. The available letters are those hereinafter referred to by number, the others those referred to solely by date.
Restriction on correspondence other than with a relative or friend (see paragraphs 29-30 above)
59. The following letters were stopped on the ground that they were not sent by or addressed to a relative or existing friend:
(a) Mrs. Colne’s letters nos. 13, 14 and 15 to Mr. Williams (see also paragraph 16 above);
(b) Mr. McMahon’s letters nos. 35, 36, 37, 38, 39, 40 and 41 (addressed respectively to a broadcasting association, a barrister, the presenter of a television programme, a journalist, the police officer who had been in charge of the investigation of Mr. McMahon’s case, a professor of law and the Mayor of Islington) and a letter of 31 December 1975 from the same journalist to Mr. McMahon. The applicant had previously exchanged three letters with the barrister in question, who was not known to him, but their correspondence was prohibited when it appeared that it would go further than a general enquiry. Although letter no. 41 was stopped, Mr. McMahon was apparently allowed to write to a local borough councillor.
This restriction was also a subsidiary ground for stopping Mr. Silver’s letter no. 4 and Mr. Carne’s letter no. 48 (see paragraph 68 below).
60. (a) Mr. Carne’s letter no. 57 to a solicitor and his letter of 15 September 1975 to the National Council for Civil Liberties were stopped as he had not previously applied to the prison governor for facilities to seek legal advice. Both of these letters were written after the entry into force of Instruction 45/1975 (see paragraph 32 above).
(b) Mr. Cooper’s letter no. 27 to a solicitor concerning a pending prosecution, which letter also post-dated Instruction 45/1975, was stopped as it was considered that he had already had sufficient facilities to seek legal advice.
(c) The following letters were stopped on the ground of failure to seek the Home Secretary’s prior leave:
(i) Mr. Noe’s letter no. 10 to a solicitor, which included the following passage: "... the property is going to be lost if you don’t come quickly - It is worth 100 to £125,000 - the equity - after refinancing and allowing good solicitor’s fees - will be £50 to £75,000 - of which you will have a piece also";
(ii) Mr. Carne’s letter no. 49 to the Devon Crown Court, which contained a request that medical reports produced at his trial be sent to his Member of Parliament.
61. This prohibition led to the stopping of Mr. Noe’s letter no. 8, which was addressed to the Lord Chancellor but actually concerned legal representation at the applicant’s appeal. Permission to send the letter was later granted by the Home Office, apparently after the appeal had been heard.
It was also a subsidiary ground for the stopping of Mr. McMahon’s letters nos. 35 and 37 (see paragraph 59 above).
62. Mr. Silver’s letter no. 1 and Mr. Tuttle’s letter no. 18 (see paragraph 68 below), which pre-dated Instruction 45/1975 and Instruction 38/1977 respectively (see paragraphs 32 and 35 above), were also stopped on the subsidiary ground that they therein asked their wives to do what they were not allowed to do themselves: in the first case, to contact a solicitor concerning an injunction against the Home Office in respect of prison treatment and, in the second, to seek legal advice from the National Council for Civil Liberties concerning control of correspondence.
63. Mr. Silver’s letter no. 7, to his wife, was stopped as it contained the following passage: "... one of my close neighbours in the prison is one of the train robbers ... Another one who arrived here last Wednesday is one of the two Asian brothers who reputedly killed .... McKay ..."
64. Mr. Tuttle’s letter no. 17, addressed to his wife, was stopped on the ground that it contained material deliberately calculated to hold the prison authorities up to contempt.
This was also a subsidiary ground for stopping Mr. Carne’s letter no. 51 (see paragraph 68 below).
65. Mr. Cooper’s letters nos. 28, 29, 30 and 31, all addressed to his parents were stopped on two grounds: that they contained threats of violence and that they employed grossly improper language.
66. The following letters were stopped on the ground that they contained material intended for publication:
(a) Mr. Silver’s letter no. 5, addressed to the Advisory Rabbi, The Jewish Chronicle, and seeking dietary advice. The letter was stopped although it was marked "Not for publication" and contained an express request that, because of the rules of the prison, no part of it be published;
(b) Mr. McMahon’s letters nos. 32, 34 and 42, the first two being addressed to the producer of a television programme and the third to a newspaper.
This was also a subsidiary ground for stopping Mr. McMahon’s letter no. 37 (see paragraph 59 above) and Mr. Carne’s letters nos. 60 and 61 (see paragraph 68 below).
67. The following letters, all addressed to Members of Parliament, were stopped on the ground that they contained complaints about prison treatment, in respect of which the "prior ventilation rule" had not been observed:
(a) Mr. Noe’s letters nos. 9 and 11;
(b) Mr. Cooper’s letters nos. 20, 22, 23, 24 and 26, and a further letter of 3 April 1974;
(c) Mr. Carne’s letters nos. 43, 45, 53, 54, 58 and 59, and further letters of 27 December 1974 and 11 January 1975.
The stopping of letter no. 43, written whilst Mr. Carne was detained on remand, was the subject of an unsuccessful petition to the Home Secretary; the Government subsequently conceded before the Commission that the censorship was erroneous, as the letter could not be said to contain a complaint.
The same prohibition also led to the stopping of Mr. Carne’s letter no. 56, to a solicitor.
Mr. Noe’s letters nos. 9 and 11 were stopped under this rule for the additional reason that the addressee was a barrister as well as a Member of Parliament.
68. The following letters were stopped because they included complaints about prison treatment:
(a) Mr. Silver’s letters nos. 1, 2, 3, 4 and 6, no. 4 being addressed to the Chief Rabbi and the remainder to the applicant’s wife. It appears that, one week after the stopping of letter no. 4, which concerned dietary grievances, Mr. Silver was allowed to send a similar letter to the Rabbi;
(b) Mr. Tuttle’s letter no. 18, to his wife;
(c) Mr. Carne’s letters nos. 44, 46, 47, 48, 50, 51, 52, 55, 60 and 61, addressed respectively to a Mr. McAndrew (nos. 44 and 50), the National Council for Civil Liberties (nos. 46 and 55), the Howard League for Penal Reform (no. 47), a medical practitioner (no. 48), the Health Service Commissioner (no. 51), the Secretary of the National Association for Mental Health (no. 52) and journalists (nos. 60 and 61). Letters nos. 46, 55 and 47 all pre-dated Instruction 38/1977 (see paragraph 35 above).
69. This prohibition was a subsidiary ground for stopping Mr. Silver’s letter no. 6 (see paragraph 68 above).
70. A subsidiary ground for stopping Mr. McMahon’s letters nos. 32 and 34 (see paragraph 66 above) was that they attempted to stimulate public petition.
71. The posting of Mr. Noe’s letter no. 12, addressed to the United States Consul and containing complaints about the control of correspondence, was delayed for three weeks as it was referred to the Home Office for instructions. The letter was written before the abolition of restrictions on the contents of letters to Consular officials (see paragraph 45 (c) above).
Mr. Cooper’s letters nos. 19, 21 and 25, all addressed to relatives, were stopped on grounds of the general control of "objectionable" letters under Rule 33(3) but without an official explanation being given. The Commission observed that the authority for this action was not clear, beyond the general discretion under the said Rule.
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84731
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: POLAK SPOL. S R.O.  v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Polák Spol. s.r.o., is a limited liability company incorporated under Czech law with its registered office in Turnov. The company was created on 3 January 1996 and has three members, K.M., P.P. and M.P. It was represented before the Court by its incorporated agent, Ms Matušková. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 April 1996 the Mladá Boleslav District Court (okresní soud), following an action brought by a certain S. on 25 May 1995, ordered P.P. to pay CZK 1,700,000 (EUR 64,708) to the claimant. On 17 October 1996 the Prague Regional Court (krajský soud) upheld this judgment. On 20 December 1996 S. invited P.P. to comply with the judgment, but the latter did not reply.
In the meantime, on 13 May 1996, P.P. and his wife had sold their immovable property to the applicant company. The purchase contract was supplemented on 24 July 1997.
On 7 April 1997 S. brought an action against the applicant company, P.P. and his wife, seeking a declaration that the sale contract was legally unenforceable (smlouva právně neúčinná). The case was assigned to a District Court judge who had been involved in the previous proceedings.
On 28 May 1998 the Regional Court granted the applicant company’s challenge for bias and excluded the District Court judge from the examination of the case.
In a judgment of 9 June 1999 the District Court held that the sale contract was legally unenforceable in respect of S., who was entitled to claim that the debt of CZK 1,700,000 awarded by the District Court’s judgment of 11 April 1996 be satisfied by the sale of the immovable property.
On 9 May 2001 the Regional Court, following the defendants’ appeals, modified this judgment in that it dismissed the action in respect of P.P. and his wife. It upheld the remaining part of the judgment. On 17 December 2001 the District Court rectified a typing error in its judgment concerning the description of the immovable property at issue. Although the applicant company was represented by a new lawyer, the court mentioned its previous legal representative.
On 5 June 2002 the Regional Court upheld the District Court’s decision, mentioning the correct lawyer. It dismissed the appeals of P.P. and his wife directed against the first instance judgment of 9 June 1999 as amended by the decision of 17 December 2001. It upheld the verdict of the District Court in respect of the applicant company but held that S. had been entitled to request that his recoverable claim vis-à-vis the applicant company be satisfied by selling the building lot.
The Regional Court’s judgment became effective on 23 July 2002.
On 9 August 2002 the second defendant filed an appeal on points of law (dovolání). The first and third defendants appealed on points of law on 3 September 2002.
On 11 December 2003 the Supreme Court (Nejvyšší soud) dismissed the three appeals on points of law holding, in respect of P.P. and the applicant company, that they had filed their appeals outside the one month statutory time-limit as provided for in Article 57 § 2 of the Code of Civil Procedure.
In the meantime, on 16 September 2002, P.P. and the applicant company had filed a constitutional appeal (ústavní stížnost) requesting the Constitutional Court (Ústavní soud) to quash the Regional Court’s judgment of 5 June 2002 and the District Court’s judgment of 9 June 1999. They supplemented it on 8 March 2004 challenging the Supreme Court’s decision of 11 December 2003. The applicant company and P.P. alleged a violation of their rights guaranteed by Articles 36, 37 and 38 § 2 (right to judicial and other legal protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod)
On 27 April 2004 the Constitutional Court declared the constitutional appeal manifestly ill-founded.
On 8 March 2004 the Constitutional Court received the applicant company’s second constitutional appeal in which it sought to quash the Supreme Court’s decision of 11 December 2003, the Regional Court’s judgment of 9 May 2001 and the District Court’s judgment of 9 June 1999, alleging a violation of their right to judicial protection under Articles 36 and 38 of the Charter.
On 19 May 2004 the Constitutional Court dismissed the appeal stating that it had been, in respect of the two first decisions, lodged outside the sixty-day time-limit laid down by the Constitutional Court Act. As far as the remaining part of the appeal directed against the Supreme Court’s decision of 11 December 2003 was concerned, the court found it unsubstantiated.
Both of the high courts wrongly identified the applicant’s seat.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-61767
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GUSINSKIY v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5;Violation of Art. 18+5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1952.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. The applicant is a former Chairman of the Board of and majority shareholder in ZAO Media Most, a private Russian media holding company, which owned NTV, a popular television channel.
10. On 2 November 1999 the applicant was interviewed by Mr Nikolayev, senior special cases investigator at the General Prosecutor's Office (“the GPO”). It appeared from the transcript of this interview that it concerned an investigation into a State-owned company known as FGP RGK Russian Video (“Russian Video”) in respect of the transfer of a broadcasting licence to a limited liability company, OOO Russian Video11th Channel (“OOO Russian Video”), in violation of various provisions of the Civil Code.
11. After the interview, a witness statement was completed and signed by both the applicant and Mr Nikolayev. The applicant was allowed to check the notes made of the interview and to add his own comments. The investigating officer noted down on the statement that the applicant had been awarded the Friendship of the Peoples Order.
12. In 2000 Media Most was involved in a bitter dispute with OAO Gazprom, a natural gas monopoly controlled by the State, over Media Most's debts to Gazprom.
13. After Gazprom had discontinued the negotiations on the debts, Media Most's offices in Moscow were searched by special units from the GPO and the Federal Security Service. A number of documents and other materials were seized as evidence in the framework of an investigation into alleged infringements of privacy by Media Most's security staff.
14. On 15 March 2000 Mr Nikolayev opened a criminal investigation in respect of the applicant (criminal case no. 18/191012-98) concerning allegations of fraud. This case was joined to a criminal investigation (case no. 18/221012-98) in respect of R., an executive of Russian Video, which concerned allegations of embezzlement. In both cases the allegations related to the business relations between Russian Video and OOO Russian Video and, in particular, Media Most's inclusion into OOO Russian Video and an increase in the latter's authorised capital, which resulted in a redistribution of each shareholder's' stake.
15. On 11 June 2000 the applicant was summoned to attend the GPO on 13 June 2000 at 5 p.m. to be questioned as a witness in relation to another criminal case. At the time of the summons by the GPO, the applicant was out of the country, but he nevertheless made arrangements to return to Russia. On arrival at the GPO on 13 June 2000, he was arrested and imprisoned in Butyrka Prison pursuant to an order issued on 13 June 2000 by Mr Nikolayev.
16. The order stated that, on the basis of Articles 90 to 92 and 96 of the Code of Criminal Procedure (“the CCP”), Mr Nikolayev considered that the crime of fraud, of which the applicant was suspected, constituted a serious public threat punishable by imprisonment alone, and that the applicant might obstruct the establishment of the truth in the case and attempt to elude the investigation and trial.
17. The applicant remained in custody until 16 June, during which time he was interrogated twice, on 14 and 16 June.
18. The interrogation on 14 June took place in the presence of the applicant's lawyers. It was explained to the applicant before the interview that he was suspected of committing large-scale fraud within the meaning of Article 159 § 3 (b) of the Criminal Code. More specifically, the charges were based on an allegation that in 1996-97, through the establishment of various commercial entities (including Media Most), broadcasting functions were fraudulently transferred from Russian Video, a State-owned company, to OOO Russian Video, a private company, thereby depriving Russian Video of the 11th Channel, which was valued at 10 million United States dollars (USD). It was alleged that in 1997 the applicant, in concert with R., began using the 11th Channel for his own purposes, without payment to the State.
19. The applicant declined to comment in detail on the investigation, other than to state that he found that it demonstrated an ignorance of Russian law and that a “political contract” had been taken out against him.
20. Mr Nikolayev noted down in the record of the interview that the applicant had been awarded the Friendship of the Peoples Order.
21. On 15 June 2000 the applicant's lawyers lodged a petition with Mr Nikolayev, complaining that the applicant's arrest was unlawful in that it did not comply with Article 90 of the CCP, that he was entitled to benefit from an amnesty exempting him from imprisonment on account of the award of the Friendship of the Peoples Order and the Amnesty Act of 26 May 2000, and that the suspicions against him were inconsistent, absurd and false.
22. In addition, the applicant's lawyers lodged a complaint with the Tverskoy District Court in Moscow under Article 220 § 1 of the CCP, claiming that the applicant's detention was unlawful and requesting his immediate release. They argued that the arrest order had been issued in violation of Articles 90, 92 and 96 of the CCP, since there were no exceptional circumstances justifying the applicant's detention before the charges had been laid or any grounds for imprisonment on the basis of the charges brought. The arrest order appeared to have been politically motivated and imprisonment was unnecessary and constituted an excessive restraint. Furthermore, there were no grounds to suspect that the applicant intended to elude the investigation or any reason to believe that he would obstruct it. Finally, the applicant was subject to an amnesty exempting him from punishment and preliminary imprisonment due to having been awarded the Friendship of the Peoples Order.
23. On 16 June 2000 Mr Nikolayev charged the applicant with fraud under Article 159 § 3 (b) of the Criminal Code. On the same day the applicant was interrogated in the presence of his lawyers. The applicant refused to sign the record of the interrogation because he did not understand the charges laid. He noted down on the record that he considered the charges to be legally absurd and that he admitted no guilt in relation to them. He again declared that the investigation was being used by the authorities to discredit him and demanded his immediate release.
24. On the same day, 16 June, Mr Nikolayev ordered the applicant's release from custody in exchange for an undertaking not to leave the country. The applicant was released at 10 p.m. on 16 June 2000.
25. After the applicant's release, Mr Nikolayev issued summonses for the applicant to appear for further questioning on 22 June and 3, 11 and 19 July 2000. The applicant attended for questioning but refused to answer the questions that were put to him.
26. The applicant asked Mr Nikolayev on a number of occasions to allow him to leave the country for personal and business reasons. Mr Nikolayev refused without giving detailed reasons.
27. During the applicant's detention between 13 and 16 June 2000, the Acting Minister for Press and Mass Communications, Mr Lesin, offered to drop the criminal charges against the applicant in connection with the Russian Video case if the applicant sold Media Most to Gazprom, at a price to be determined by Gazprom.
28. While the applicant was in prison, Gazprom asked him to sign an agreement in return for which the applicant was told that all criminal charges against him would be dropped. The agreement between Gazprom and the applicant was signed on 20 July 2000 (the “July agreement”). It included a provision in Annex 6 calling, inter alia, for the termination of the applicant's criminal prosecution in relation to Russian Video and for an undertaking regarding his security. This provision read as follows:
“The Parties realise that successful implementation of the Agreement is possible only if the individuals and legal entities concerned acquire and exercise their civil rights of their own free will and in their own interests, without compulsion by any other party to act in any particular way. In the current situation, this implies that certain interrelated conditions must be met, namely:
– termination of the criminal prosecution against Mr Vladimir Aleksandrovich Gusinskiy in connection with the criminal case initiated against him on 13 June 2000, his reclassification as a witness in the said case and suspension of the precautionary measure prohibiting him from leaving [the country]. Should this condition not be met, the Parties are relieved of their obligations hereunder;
– provision to Mr Vladimir Aleksandrovich Gusinskiy and other shareholders (stockholders) and executives of the [Media Most subsidiaries] of guarantees regarding their security and protection of their rights and freedoms, including the right to travel freely, to choose their place of stay and residence, to leave the Russian Federation freely and to return to the Russian Federation without hindrance;
– renunciation of all steps, including public statements or dissemination of information by the organisations, their shareholders and executives, which would damage the foundations of the constitutional regime and violate the integrity of the Russian Federation, undermine the security of the State, incite to social, racial, national and religious discord or lead to the discrediting of the State institutions of the Russian Federation.”
29. Annex 6 was signed by the parties and endorsed by Mr Lesin's signature.
30. Following the signing of the July agreement, the criminal prosecution against the applicant in connection with Russian Video was stopped by a stay of prosecution and an order cancelling the precautionary measure, issued by Mr Nikolayev on 26 July 2000. The order read as follows:
“Analysis of the evidence confirms the illegal nature of [the applicant's] doings. However, the actions of the head of ZAO Media Most, Mr Gusinskiy, contain elements belonging to substantive law as well as elements relating to criminal-law provisions. In view of the specific nature of the act committed, it is impossible to attribute it to separate legal spheres.
In the course of the investigation, Mr Gusinskiy understood the unlawfulness of acquiring the right to another's property and, in this connection, he has provided reimbursement for the damage he caused by assigning his share in the statutory capital of OOO Russian Video-11th Channel to the State. In addition, he has significantly compensated for the harm caused to the interests of the State by voluntarily transferring ZAO Media Most shares to a legal entity controlled by the State.
The steps taken by the accused are extenuating circumstances and attest to his sincere repentance which, in conjunction with other positive characterising details and the absence of a previous criminal record, enables a decision to be taken to exempt Mr Gusinskiy from criminal prosecution.”
31. At the same time the precautionary measure forbidding the applicant to leave the country was lifted. On the same day the applicant left Russia and on 21 August 2000 he went to his villa in Sotogrande, Spain.
32. Following the applicant's departure from the country, Media Most refused to honour the July agreement, claiming that it had been entered into under duress.
33. On 20 June 2000 the Tverskoy District Court closed the proceedings initiated following the applicant's complaint about the unlawfulness of his detention. The court found that the complaint could not be examined since the detention order had by that time been cancelled, and only those actually detained could appeal against detention.
34. On appeal, this decision was upheld by the Moscow City Court on 11 July 2000.
35. On 27 September 2000 Mr Nikolayev initiated a further criminal investigation in respect of the applicant. The new charge was brought under Article 159 § 3 (b) of the Criminal Code and concerned the fraudulent obtaining of loans by Media Most. The applicant was not provided with a copy of the order initiating the proceedings. However, according to the information gathered by the applicant's lawyers, the criminal investigation was opened on the basis of an application filed by Gazprom with the GPO on 19 September 2000. Gazprom asked the GPO to investigate the spending of funds obtained by Media Most and, in particular, to find out whether the use of the loans were in line with the activities permitted by Media Most's charter, whether the funds were used for their intended purpose, and whether the management of Media Most had violated any law in relation to the loans. Gazprom, a State-controlled company, was involved as a guarantor of the loans.
36. On 1 November 2000 Mr Nikolayev issued a further summons for the applicant to attend the GPO on 13 November, to be informed of the charges against him and interrogated.
37. As the applicant did not attend the GPO, Mr Nikolayev amended the order for the applicant's prosecution. He re-instigated the charges for fraud under Article 159 § 3 of the Criminal Code, this time in connection with another incident, and imposed the precautionary measure of detention. The order was transmitted to the Russian National Interpol Bureau. The charges alleged that the applicant had fraudulently obtained loans.
38. The applicant was arrested in Spain on 11 December 2000 pursuant to an international arrest warrant and imprisoned in that country on 12 December 2000. On 22 December 2000 the applicant was released from prison on bail of USD 5.5 million and placed under house arrest in his villa in Sotogrande.
39. Following an application by the applicant's lawyers, the Tverskoy District Court in Moscow ruled on 26 December 2000 that the initiation of the Media Most loan investigation had been unlawful because the evidence gathered by the investigating authorities had not disclosed sufficient elements of fraud to institute criminal proceedings.
40. On 5 January 2001 the Moscow City Court set aside the judgment of 26 December 2000 on the ground that no appeal lay against investigating authorities' decisions to institute criminal proceedings.
41. Following proceedings in the Spanish courts, on 4 April 2001 a judgment was given in the applicant's favour refusing the request by the Russian authorities for the applicant's extradition from Spain. In refusing the extradition request, the Spanish court (Audiencia Nacional) stated:
“[I]t is possible to observe in the documents furnished by [the applicant]... certain noteworthy and peculiar circumstances which are unusual in the sphere of judicial claims for fraud and which, although they do not in themselves lead to the conclusion that we are dealing with an irregular claim filed for a political purpose, compel the Court to consider [the applicant's] argument as not completely without foundation as far as the facts and interferences are concerned and as not inconceivable or discountable on the basis of logical criteria and experience.
1. The agreement of 20 July 2000 ... of sale by [the applicant] to Gazprom-Media of a parcel of shares ... [Annex 6] – a supplementary agreement which is not common in relationships between sellers and purchasers of securities – concludes with two signatures, one of which is the habitual signature of the representative of Gazprom-Media ... which appears in the body of the contract and in other annexes and another signature which at first sight does not coincide with [the applicant's] normal signature – in the agreement, annexes and stamps in this extradition procedure. [The applicant] claims that this is the signature of a member of the Russian government.
2. ... Six days after the date of the agreement, [the applicant], who stood accused in the proceedings [concerning Russian Video] and had undertaken not to leave the country, was exempted from liability in the said proceedings and the measure restricting his freedom was lifted ...
3. [The applicant's] statements at the extradition hearing with regard to the pressure and coercion suffered, which he gives as the reasons prompting him to sign the agreement of 20 July 2000 ...
4. The judgment of the Tverskoy District Court of 26 December 2000 ...
These peculiarities of the case must inevitably have legal significance for the judicial ruling on this extradition request since the fact that the Court has perceived them ... obliges it, for reasons of legal security and effective judicial protection ... to stretch to the extreme the judgment of double incrimination, analysing the grounds for the accusation in view of the need to provide due legal protection ...”
42. On 19 June 2002 Judge Merkushov, a Deputy President of the Supreme Court, lodged an application for supervisory review of the decisions of the Tverskoy District Court of 20 June 2000 and the Moscow City Court of 11 July 2000. The judge maintained that it was the lawfulness of detention rather than detention itself which should have been the subject of the judicial review. He requested the Presidium of the Moscow City Court to remit the case for a fresh examination by the Tverskoy District Court.
43. On 18 July 2002 the Presidium of the Moscow City Court granted the application.
44. On 26 September 2002 the Tverskoy District Court examined the substance of the complaint in respect of detention. At the hearing, the representative of the GPO (the defendant) argued that at the time of the applicant's arrest he could have obstructed the course of justice because he had been the head of Media Most and, accordingly, had unlimited opportunities to influence witnesses and had access to written evidence. Furthermore, as the applicant had dual citizenship and a travel passport, he could have escaped abroad. With regard to the applicant's allegation that he had been entitled to an amnesty, the prosecutor noted that documentary proof that the applicant had indeed held the award in question had been submitted only on 15 June 2000, that is to say, after the arrest, and the applicant had been released on the following day. The Tverskoy District Court accepted the GPO's arguments. It found that, in the light of the explanations provided by the GPO's representative, the wording of the detention order of 13 June 2000 could not be regarded as strained and hypothetical. As to the award, the court found that the law on criminal procedure contained no restriction on the application of precautionary measures to a person subject to an amnesty.
“A criminal prosecution may not be started, or, if already started, shall be stopped if
...
(4) an amnesty law has been passed which relieves [the person concerned] from punishment ...”
“If there are sufficient reasons to believe that the accused will elude the investigation or evade justice, obstruct the establishment of the truth in the case or engage in criminal activities ...,one of the following precautionary measures may be imposed: an order not to leave the place of residence, a personal undertaking or an undertaking from a non-governmental organisation, taking into custody ...”
“In exceptional circumstances, a precautionary measure may be imposed on a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days of the precautionary measure being imposed. If no charges are brought within that period, the precautionary measure shall be lifted.”
“When considering the need to impose a precautionary measure and the nature of the precautionary measure to be imposed ..., the factors to be taken into account are ... the seriousness of the charges brought and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances.”
“A precautionary measure shall be imposed by means of an order issued by an inquiry officer, investigator, prosecutor, or a reasoned decision delivered by a court, which must specify the offence of which the person is suspected or accused and the grounds for imposing the precautionary measure. The person concerned must be informed of the order or decision and, simultaneously, of the procedure for bringing a complaint against the decision to impose such a measure.
A person on whom a precautionary measure has been imposed shall be provided immediately with a copy of the order or decision.”
“Taking into custody shall be imposed as a precautionary measure ... for offences punishable by imprisonment of more than one year. In exceptional circumstances, this precautionary measure may also be applied to offences punishable by imprisonment of less than one year ...”
45. The relevant parts of Article 159 § 3 (b) of the Criminal Code of 1996 provide:
“Fraud, namely, theft or acquisition of another's property by misrepresentation or abuse of trust ... [committed on] a large scale ... shall be punishable by five to ten years' imprisonment with or without expropriation.”
46. On 26 May 2000 the State Duma declared an “amnesty in commemoration of the 55th anniversary of the victory in the Great Patriotic War of 1941-45”. The corresponding text (“the Amnesty Act”) came into force on 27 May 2000. It provided as follows:
“...
2. [Convicted persons] shall be exempted from serving a prison sentence, irrespective of its length:
...
(b) [if they have been] awarded orders or medals of the USSR or Russian Federation;
...
8. Criminal proceedings pending before investigating authorities and courts which concern offences committed before the entry into force of the present Act shall be terminated in respect of:
...
(b) the persons indicated in [section 2 (b)] of the present Act;
...”
47. On 26 May the State Duma also adopted an instruction on the application of the Amnesty Act. The instruction provided as follows:
“1. The [Amnesty Act] shall be implemented by:
...
(b) investigating authorities in respect of persons suspected or accused of crimes, if these authorities are conducting proceedings in respect of the said crimes;
...
3. The decision on the application of the Amnesty Act shall be taken individually in respect of each person. If the information on the person is insufficient, the decision on the application of the amnesty may be postponed until additional documents are received ...”
VIOLATED_ARTICLES: 18
5


ITEMID: 001-60875
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF IOANNIS PAPADOPOULOS v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Françoise Tulkens
TEXT: 8. The applicant was born in 1947 and lives in Athens.
9. On 16 July 1998 the applicant was arrested in flagrante delicto for entering without prior authorisation to the operation block of the hospital where he was working. He was placed in detention for one day.
10. On 17 July 1998 the Athens First Instance Criminal Court found the applicant guilty and sentenced him to six months imprisonment. The same day the applicant appealed against this decision. His appeal has suspensive effect. The hearing was scheduled for 16 September 2002.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95120
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: AHLSKOG v. FINLAND (NO. 2)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Lars Ahlskog, is a Finnish national who was born in 1929 and lives in Kokkola. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 April 1980 the Finnish Export Guarantee Fund (Vientitakuulaitos, Exportgarantianstalten – “the Fund”) granted to a limited liability company wholly owned by the applicant a state guarantee, as it was exporting its products to Germany. On 5 May 1980 the company transferred all its rights related to the above-mentioned guarantee to a bank. The transfer was confirmed by the Fund on 14 May 1980. Later the bank set off the amount of the guarantee from the company’s account without the applicant’s approval. Civil proceedings were instituted against the bank in relation to the state guarantee in question. On 27 October 1981 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) gave a final decision in which the set off was approved by the court.
The applicant apparently learned about the above-mentioned Supreme Administrative Court’s decision for the first time on 27 October 1999. He immediately requested that the proceedings be reopened as the Supreme Administrative Court had failed to communicate to him a statement which it had received from the Fund during the first part of the proceedings. The Supreme Administrative Court rejected the applicant’s request on 27 September 2000, finding that even though the court had indeed failed to communicate the document in question, the proceedings had been in conformity with the law as in force at the time.
On 4 September 1996 the applicant and another person gave a directly enforceable guarantee to cover the debt of the applicant’s company. The debt fell due on 31 March 1999 and was not paid.
On 30 June 1999 the creditor bank initiated civil proceedings in the Kokkola District Court (käräjäoikeus, tingsrätten) requesting the company, the applicant and the third person to pay the debt.
On 23 September 1999 the creditor bank requested that the applicant’s assets be sequestrated. The District Court granted the sequestration order on 27 September 1999.
On 8 February 2000 the District Court asked the defendants to indicate clearly in writing whether or not they contested the claim at the risk of a default judgment. The applicant and his co-defendants filed their statements of reply on 15 and 20 March 2000 respectively but failed to indicate clearly their position. On 21 March 2000 the District Court gave a default judgment in which it ordered the applicant and his co-defendants to pay the debt. The judgment was served on 9 May 2000.
On 12 May 2000 the applicant and his co-defendants lodged an appeal against the default judgment with the District Court requesting a stay of execution and that the default judgment be quashed and the claims of the creditor bank be rejected. On 15 June 2000 the District Court ordered a stay of execution of the default judgment.
Meanwhile, the applicant also lodged a procedural complaint with the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the default judgment be quashed. On 22 May 2000 the Appeal Court stayed the execution of the default judgment. On 9 June 2000 the court dismissed the complaint without considering the merits as the case was still pending before the District Court. The stay of execution given by the court on 22 May 2000 expired.
The District Court proceedings comprised three different sets of civil proceedings, namely the applicant’s claim for a refund of benefit by unjust enrichment, the appeal against the default judgment and an action for damages, which was subsequently withdrawn. The District Court asked the creditor bank to submit its replies by 4 December 2000 and 22 January 2001. The applicant was asked to give his reply by 26 February 2001 but this time-limit was extended several times until 31 October 2001. A preparatory hearing was scheduled for May 2002 but it was cancelled as the applicant had brought a criminal action for aggravated abuse of public office against the presiding judge. These charges were subsequently found manifestly ill-founded.
Another judge was appointed to the case. In February 2003 the creditor bank proposed that, in order to avoid partiality issues, the matter be adjudicated in a formation of three judges instead of one and that the judges be appointed jointly with the Appeal Court. Later on the parties, however, gave their consent to the single judge composition. The three sets of civil proceedings were joined on 7 May 2003.
In October 2003 the applicant requested that an oral hearing concerning the criminal proceedings, which related to the bankruptcy proceedings of the company and which were pending before the same court, be held before an oral hearing in the civil proceedings. Despite this request, the preparatory hearings in the civil proceedings were held on 21 and 29 October 2003. On 11 December 2003 the applicant indicated that if no oral hearing was held in the criminal case before an oral hearing was held in the civil case, he would bring a criminal action against the presiding judge. On 12 December 2003 he brought such action for abuse of public office against the presiding judge which he later, however, abandoned. A continued preparatory hearing and the oral hearing in the civil case were held in December 2003.
On 6 February 2004 the District Court quashed the default judgment and rejected the creditor bank’s claims as far as the applicant was concerned. As far as the company was concerned, the court rejected its appeal and upheld the default judgment. The stay of execution given by the court on 15 June 2000 expired.
In March 2004 all parties to the case appealed to the Appeal Court. The applicant’s appeal only concerned costs and expenses. The company requested that the default judgment be quashed and that the claims of the creditor bank be rejected.
On 10 May 2004 the Appeal Court stayed the execution of the District Court’s judgment. In July and September 2004 the applicant was asked to supplement his appeal, which he did on 20 August and 24 September 2004 respectively. Between September 2004 and January 2006 the applicant continually submitted letters to the court at four to five week intervals.
The court held a preparatory hearing on 13 May 2005. On 6 February 2006, a day before the scheduled oral hearing, the applicant entered a disqualification plea against the presiding judge of the court. This plea was rejected as manifestly ill-founded during the oral hearing on 7 February 2006.
On 4 April 2006 the Appeal Court accepted the applicant’s appeal and he was freed from the obligation to pay costs and expenses. For the rest, the court upheld the District Court’s judgment. The stay of execution given by the court on 10 May 2004 expired.
The applicant and the company appealed to the Supreme Court (korkein oikeus, högsta domstolen). On 14 August 2006 the Supreme Court refused leave to appeal.