ITEMID: 001-5994
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KAVANAGH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1961. He is currently serving a prison sentence in the United Kingdom. He is represented before the Court by Mr J. Wadham, a solicitor working with the Legal Department of Liberty, a non-governmental organisation based in London, England.
The facts of the case, as submitted by the parties, may be summarised as follows.
At about 8.30 a.m. on 28 July 1995 an individual carrying a bunch of flowers forced his way through the front door of the home of a seventy-five year old woman as she was about to leave her house. He stole fifty pounds in cash from her as well as jewellery and ornaments valued at eight thousand pounds. During the robbery the victim sustained a broken finger and cuts and bruises to her head and body.
The victim provided a detailed description of the robber’s physical appearance and attire. This description broadly matched that given by a postman who had spotted a man carrying a bunch of flowers in the vicinity on the morning in question. Although the victim and the postman noted some resemblance between two of the volunteers and the robber at a police identification parade organised on 2 October 1995, neither was able to make a positive identification.
At 4.19 p.m. on the day of the robbery the applicant surrendered to his bail at a London police station in respect of a separate offence. He was found to be in possession of three hundred and forty pounds and twenty-one pence. He had no other items of property on him. Some of his clothing matched the description of the clothes worn by the robber. On the same day he was granted bail in relation to the separate offence but was soon afterwards re-arrested on another matter and remanded in custody.
On 4 August 1995 police officers investigating the robbery searched the applicant’s home and seized the clothes and shoes which he was wearing when he surrendered himself to the police on 28 July 1995. Nothing else relevant to the robbery was recovered.
On 9 August 1995 the applicant was twice interviewed under caution by the police in connection with the robbery. He had a private consultation with his solicitor before the first interview began. The police had informed the applicant’s solicitor that finger and palm prints had been found inside the victim’s house but refused to say where. The applicant was then interviewed for the first time under caution. He was told by police:
“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence”.
The applicant declined to answer any of the questions put to him during interview. The interview was stopped in order to allow the applicant to have a further private consultation with his solicitor, as he had requested. The applicant gave samples of his finger and palm prints to the police. The police informed the applicant the same day that analysis had shown that his prints matched those found inside the victim’s front door. The second interview then began. The applicant was again cautioned and was reminded that he was entitled to free legal advice at any time. The applicant confirmed that he understood what had been said to him. The applicant’s solicitor then confirmed that his role was to protect the applicant’s interests and legal rights and that the applicant could take legal advice at any stage during the interview. The solicitor added that if any questions were put to the applicant which he considered improper or if any questions concerned matters that had not been disclosed to the applicant in advance, he would indicate to the applicant the need to take advice. Finally, the solicitor added that the applicant intended to make no comment to any questions put to him by the police but that he wanted to participate in an identification parade.
The applicant was then asked a number of questions about his connection with the victim’s house and his involvement in the robbery. It was specifically suggested to him that he had committed the robbery and that the finger and palm prints pointed to this. He was also asked about his alibi. The applicant continued to make no comment and was again warned of the risk of adverse inferences being drawn from his silence. The applicant stated that he had been advised by his solicitor to make no comment and would not make any comment.
The applicant was charged with the robbery shortly after the second interview. He then repeated his request to participate in an identification parade.
For six days from 10 May 1996 the applicant was tried before a jury at Kingston Crown Court, London, on charges of robbery and handling stolen goods.
At the trial the prosecution adduced forensic evidence in the form of a footprint found on the victim’s carpet which matched the thread pattern of the shoes worn by the applicant on the day of the robbery, as well as fibres found on the applicant’s shoes, seized at his home on 4 August 1995, which matched those on the victim’s carpet. The prosecution conceded that neither element was conclusive of guilt. Of greater importance to the prosecution case was the fact that finger and palm prints found on the victim’s front door were consistent with the applicant having been inside the house and having shut the door from the inside.
The applicant testified at the trial that he had not been anywhere near the area where the victim lived on the day in question. A defence witness testified that he was with the applicant at the time of the robbery in another part of London. The applicant stated in his defence that he had called at the victim’s house as well as other houses in her street in early July 1995 seeking help in connection with his car which had broken down. The victim’s front door was ajar and he went into the hall and called out to see if anyone was in. There was no reply. The applicant submitted that he must have left his fingerprints on the front door on that occasion. The applicant called three witnesses in support of his account of having been in the street and having called at houses looking for jump leads for his car. The victim told the jury that she never left the front door open and that her cleaning lady wiped it regularly. The cleaning lady testified that she cleaned the inside of the front door every Monday.
In the course of the trial the applicant’s counsel made an application in the absence of the jury that the trial judge hear evidence and submissions as to the admissibility of the fact that the applicant had, generally, made no comment when interviewed by the police, and had not disclosed the fact that he had an alibi and an explanation for the presence of the fingerprints, on the advice of his solicitor. It was also submitted on the applicant’s behalf that, as a matter of law, there was no material on which the jury could be properly invited to draw inferences adverse to the applicant from his silence in interview. The trial judge gave an indication that adverse inferences might be drawn if the solicitor, who could give evidence as to the advice he gave to the applicant and the reasons for it, did not do so before the jury. The judge declined to hear evidence in the absence of the jury. He ruled:
The jury has to decide whether the [applicant] has good reason for making no comment, not to decide whether the solicitor had good reason for giving the advice that he gave.”
The judge then assured counsel for the prosecution and the defence that he would later give them an opportunity to make submissions to him as to how he should direct the jury.
The applicant did not call his solicitor to testify. In the course of his evidence the applicant waived legal professional privilege and was cross-examined on his admitted failure to tell his solicitor on the day of his arrest about his alibi or his explanation for his fingerprints being found on the front door of the victim’s house. As to why he had made no comment to the questions put to him during interview, the applicant said that this was because his solicitor had so advised him, and added that his solicitor had given him this advice as the police would not disclose to the defence where in the victim’s house the finger and palm prints had been found.
As to the applicant’s silence during the two police interviews, the trial judge directed the jury in the following terms:
“The prosecution case is that in the circumstances when he was questioned or charged he could reasonably have been expected then to mention those facts. The law is that you may draw such inferences as appear proper from his failure to mention those facts when he was questioned or charged. You do not have to hold it against him, it is for you to decide whether it is proper to do so. Failure to mention such facts at the time cannot on its own prove guilt. But depending on the circumstances, you may hold that failure against him when deciding whether he is guilty. You must decide whether, in the circumstances which existed at the time, the earlier innocent visit and the alibi were facts that the [applicant] could reasonably have been expected to mention when he was questioned under caution before being charged with the offence or when he was charged with the offence.
The applicant was not obliged to answer to questions, he was entitled to remain silent. That was his right and his choice. I remind you that the burden of proof remains on the prosecution throughout. The [applicant] has to prove nothing. Any inference from his failure to mention those facts when he was questioned under caution or charged or when he was charged cannot of its own prove guilt. You must be satisfied that the prosecution has established a case to answer before drawing any inferences from the failure to mention those facts. That means you must be satisfied that the [applicant’s] finger and palm prints were on the inside of the [victim’s] front door and that any physical description of the robber did not exclude the [applicant]. If, despite any evidence relied on to explain his failure to mention those facts when he was questioned under caution before being charged or when he was charged, you conclude that his failure to mention those facts can only sensibly be attributed to those facts not being true, you might draw an adverse inference.”
Later the judge reminded the jury:
“The [applicant] was interviewed on 9 August. Towards the end of the second interview he said that he was advised by his solicitor to make no comment, that is, to refuse to answer questions. The prosecution say that the [the applicant] could reasonably have been expected to mention certain facts.”
Shortly afterwards the judge added:
“[The applicant] tells you that he did not answer questions because he had been advised not to because he had not been told whereabouts his fingerprints had been found in [the victim’s house]. Does that mean that he could not reasonably be expected to mention his whereabouts on 28 July? Does that mean that he could not reasonably have been expected to mention his innocent visit to [the victim’s house]? The prosecution say this: until a man knows whereabouts in the house his prints have been found, he cannot even think about a story to explain them away. You have been told, you have heard the evidence, that the solicitor advised the [applicant] to make no comment.”
Finally, the judge recited the applicant’s evidence on the solicitor’s advice:
“I [the applicant] spoke to a solicitor before the interview. I was advised to make no comment in the interview from the outset. The police wouldn’t say where my fingerprints had been found. I accepted that advice.”
The jury returned a verdict of guilty by a majority of ten to two. On 21 May 1996 the applicant was sentenced to fourteen years’ imprisonment for the robbery offence and twelve months’ imprisonment concurrently for handling stolen goods.
The applicant appealed against his conviction and sentence to the Court of Appeal with the leave of the Single Judge. Before the Court of Appeal, the applicant contended inter alia that the trial judge had erred in law by permitting the police interviews to be admitted in evidence and by directing the jury that it was open to them to draw inferences from the failure of the applicant to mention during the interviews the matters which he later relied on in evidence at his trial.
On 7 February 1997 the Court of Appeal dismissed the applicant’s appeal against conviction while reducing his prison sentence from fourteen to twelve years.
Delivering the judgment of the Court of Appeal, Lord Justice Rose stated that the court was not persuaded that the trial judge was wrong to decline to hear submissions in the absence of the jury on the exclusion of evidence. Lord Justice Rose considered that, even if evidence had been heard by the judge on the voir dire, it was inevitable that the judge would have ruled that the evidence sought to be excluded could be heard by the jury. The Court of Appeal concluded:
“In our judgment, therefore, it follows that there can be no adverse impact upon the safety of this conviction by the course of events followed in relation to the submissions made in relation to section 34 [of the Police and Criminal Evidence Act 1994].”
As to the question whether the trial judge had given a proper direction to the jury on the drawing of inferences from the applicant’s silence at the police interviews, Lord Justice Rose stated:
“... the learned judge directed the jury impeccably, in accordance with the five points to which Lord Taylor C.J. drew attention in R. Cowan (1996) 1 Cr. App. R. 1, that is to say as to the correct approach by the jury before they could draw inferences adverse to the accused from his failure to mention material facts. ... In our judgment, when the whole of the summing up is read ... there is no sustainable argument that the judge’s direction in relation to inferences were other than appropriate and adequate ... What is of significance, for consideration by the jury, is whether and when, in the sequence of events, as between arrest, charge and trial, the [applicant] mentions, if he does mention, matters relevant to his defence. It is for the judge to tailor his summing-up to the circumstances of the particular case, in order to deal with those matters. We see no ground for criticising the judge’s summing up in this respect.”
Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“1. Where in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
2. Where this subsection applies ...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.
3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”
Section 35 (2) and (3) provides:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
Section 38 (3) adds that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”
Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185).
The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that:
“If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.
The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”
The dicta of Lord Taylor CJ are as follows:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
The current specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides:
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.
The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].
The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].
If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.
Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.
[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]”
In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised.
The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported).
In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999: “The Times”, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated:
“Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.”
The Government submitted in the Condron v. the United Kingdom case (judgment of 2 May 2000, no. 35718/97, to be published in ECHR 2000-V) that the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act.
In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial.
Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal:
“shall allow an appeal against conviction if it thinks that the conviction is unsafe”.
In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen


ITEMID: 001-75101
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF I.H. AND OTHERS v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 11. The applicants, four in all, are Austrian nationals of Turkish origin, born in 1978, 1959, 1959 and 1961 respectively, and are living in Lustenau (Austria). The second applicant is the first applicant’s father, the third applicant his mother and the fourth applicant his uncle. On 21 March 1997 the Feldkirch Public Prosecutor filed a bill of indictment against the applicants charging them with rape under section 201 § 2 of the Penal Code, coercion and deprivation of liberty. The public prosecutor stated that since September 1995 the first applicant had been the fiancé of F.D. Their future marriage had been arranged by their respective fathers. After the death of F.D.’s father in May 1996, F.D. considered herself no longer bound by the promise of betrothal given by her father. She told this to the first applicant and his parents who, however, refused to accept her change of mind.
12. Ever since the death of F.D.’s father the second applicant regularly brought F.D. by car to her place of work and drove her home again after work. On 22 July 1996, around 5.00 a.m., the second applicant, accompanied by the first and third applicant, picked up F.D. and brought her to the home of the fourth applicant. The second applicant told her that she was going to have sexual intercourse with the first applicant. He also told her that if she resisted she would be held by the second and fourth applicants and that the third applicant would force her legs apart. She was accompanied to the bedroom. The first applicant attempted to have sexual intercourse with her, but this attempt failed because of F.D.’s resistance. Thereupon, the first applicant requested the third applicant to help him. The third applicant tied F.D.’s hands with adhesive tape and stuck a strip of adhesive tape over her mouth. She then held F.D.s arms while the first applicant had intercourse with F.D. Thereafter, F.D. was constrained to spend the rest of the day with the first applicant in the house.
13. The second and third applicants phoned her mother and told her that F.D. had been kidnapped by them and that she should not contact the police, otherwise F.D. would be killed. Nevertheless, F.D.’s mother informed the police about the incident. Around 8.00 p.m. F.D. was allowed to phone her mother. Soon afterwards police officers arrived at the house and arrested all four applicants.
14. On 23 May 1997 the applicants’ trial was held before the Feldkirch Regional Court. The applicants, assisted by counsel, Mr. Weh, maintained their innocence and claimed that F.D. had accompanied them voluntarily in order to become closer acquainted with the first applicant’s uncle and that, on this occasion, she had had sexual intercourse with the first applicant of her own free will. No violence whatsoever had been used against her. The court heard the applicants and several witnesses, including the victim, her mother and a doctor who had examined the victim at the hospital. F.D. repeated to the court the statements she made to the police and the investigating judge, but added that her family and the applicants’ family had meanwhile settled the matter and that she had received a payment of 50,000 ATS from the applicants’ family.
15. On the same day the Regional Court convicted the applicants of rape under section 201 § 1 of the Penal Code and of deprivation of liberty. The first and second applicants were also convicted of aggravated coercion. The first applicant was sentenced to one year’s imprisonment, the second applicant to two years, the third applicant to twenty months and the fourth applicant to eighteen months of imprisonment. In its judgment, the court described the course of the events in the same terms as in the bill of indictment.
16. As regards the classification of the offence in law, the court found that from the facts established it was apparent that F.D. had been exposed to and had been threatened with acts of serious violence. It therefore had to convict the applicants of rape under Section 201 § 1 of the Penal Code.
17. On 24 July 1997 the applicants filed pleas of nullity (Nichtigkeits-beschwerde) and appeals against sentence (Berufung). The applicants complained, inter alia, that their conviction for rape had gone beyond the terms of the indictment (Anklageüberschreitung) as they were convicted of rape under section 201 § 1 of the Penal Code while the bill of indictment had charged them with rape under section 201 § 2 of the Penal Code. In the applicants’ submission, if the Regional Court had been of the opinion that the public prosecutor’s indictment had not corresponded to all the elements of the case it should have given the public prosecutor the opportunity to amend the indictment. This would at the same time have given the applicants the opportunity to react to the amendment and to dispute the existence of any aggravating circumstances.
18. On 2 December 1997 the Supreme Court rejected the applicants’ appeal under section 285d § 1 of the Code of Criminal Procedure without holding a hearing. As regards the complaint that the judgment had exceeded the terms of the indictment with respect to the charge of rape, the Supreme Court found that a ground of nullity could only be made out if the applicants had been found guilty of an offence which had not been the subject matter of the indictment. The subject matter of an indictment was a specific act or event which, in the eyes of the public prosecutor, had brought about a punishable result. If, on the basis of the evidence taken, the event which formed the basis of the indictment had, in certain details, occurred in a manner different from that assumed by the prosecution, the court had to apply the correct law to the established facts even if the result was that the legal qualification then applied differed from the one made by the public prosecutor.
It was only where the taking of evidence showed a course of events which was entirely different from the events described in the indictment such that it could no longer be considered covered by the terms of the indictment, that a conviction would pre-suppose the prior amendment of the indictment. In the present case, the act with which the applicants were charged was identical to the established facts as set out in the judgment. The trial court had merely come to a different legal qualification on the facts. However, this did not exceed the terms of the indictment (Anklageüberschreitung). Moreover, the different legal qualification given to the offence was not in breach of the Convention. It was the main purpose of Article 6 § 3 (d) of the Convention to achieve equality of arms between the prosecution and the defence. However, it could not be considered that a legal qualification in the judgment which differed from the one in the indictment infringed this or any other provision of the Convention. The Supreme Court remitted the applicants’ appeal against sentence to the Innsbruck Court of Appeal.
19. On 11 February 1998 the Court of Appeal dismissed the applicants’ appeal and confirmed the sentences fixed by the Regional Court.
20. Section 201 of the Penal Code (Strafgesetzbuch) reads as follows:
“1. Anyone who compels another person, by use of serious violence or threats of immediate serious danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of one to ten years. Rendering unconscious also qualifies as use of serious violence.
2. Anyone who, except for the case under paragraph 1, compels another person, by use of violence, deprivation of liberty or threats of danger to life or limb, to have sexual intercourse or to perform a sexual act which amounts to sexual intercourse shall be punished by imprisonment of six months to five years.
3. If the violence resulted in serious bodily harm to the victim, or if the victim has endured great pain for a prolonged period or has been particularly humiliated, the perpetrator of the offence shall be punished by imprisonment of five to fifteen years in the case of paragraph 1 and by imprisonment of one to ten years in the case of paragraph 2. If the violence resulted in the death of the victim the perpetrator of the offence shall be punished by imprisonment of ten to twenty years in the case of paragraph 1 and by imprisonment of five to fifteen years in the case of paragraph 2.”
21. Under the Code of Criminal Procedure the remedies against a judgment by a chamber of a Regional Court are, on the one hand, a plea of nullity (Nichtigkeitsbeschwerde) and, on the other, an appeal against sentence (Berufung). A plea of nullity has to be addressed to the Supreme Court while an appeal against sentence has to be addressed to the Court of Appeal. Section 281 enumerates exhaustively the various grounds for nullity which can be invoked in a plea of nullity. They comprise such elements as participation of an excluded judge (S. 281 § 1 (1)), lack of proper assistance by a defence counsel (S. 281 § 1 (1a)) or breach of a provision of the Code of Criminal Procedure for which the sanction of nullity is expressly provided for (S. 281 § 1 (3). Moreover, it is a ground for nullity if, due to incorrect interpretation, an inapplicable legal provision has been applied to the act underlying a judgment (s. 281 § 1 (10)). In a plea of nullity the assessment of evidence by the Regional Court cannot be challenged unless in the judgment the assessment of evidence is not set out, or if it is unclear, illogic, or in contradiction to the case file (S. 281 § 1 (5) and (5a).
VIOLATED_ARTICLES: 6


ITEMID: 001-59594
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SADAK AND OTHERS v. TURKEY (No. 1)
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 concerning independence and impartiality;Violation of Art. 6-3-a;Violation of Art. 6-3-b;Violation of Art. 6-3-d;Not necessary to examine Art. 6-1 concerning the other complaints;Not necessary to examine Art. 10;Not necessary to examine Art. 11;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 7. The applicants are former members of the Turkish National Assembly and of the Democracy Party (DEP), which was dissolved by the Constitutional Court on 16 June 1994.
8. The public prosecutor at the Ankara National Security Court accused them of having infringed Article 125 of the Turkish Criminal Code and made repeated applications – on 27 November 1991, 16 December 1992, 25 May 1993 and 2 July 1993 – for their parliamentary immunity to be lifted.
On 2 March 1994 the National Assembly, having deliberated on the basis of the application of 16 December 1992, decided to lift the applicants’ parliamentary immunity under Article 83 of the Turkish Constitution.
9. On 2 March 1994 Mr Dicle and Mr Doğan were taken into police custody on the orders of the public prosecutor at the Ankara National Security Court. On 4 March 1994 Mrs Zana suffered the same fate.
A few days later the public prosecutor at the Ankara National Security Court ordered the detention of those three applicants in police custody to be extended until 16 March 1994.
10. While in custody, the applicants made no statements to the police.
11. On 16 March 1994 they were brought before a judge of the Ankara National Security Court and placed in detention pending trial.
12. On 16 June 1994 the Constitutional Court dissolved the DEP and ordered the party’s MPs to vacate their parliamentary seats.
13. Mr Sadak was taken into police custody on 1 July 1994 and placed in detention pending trial on 12 July 1994.
14. In the meantime, on 21 June 1994 the public prosecutor at the Ankara National Security Court had filed a bill of indictment in which he accused the applicants of treason against the integrity of the State – a capital offence under Article 125 of the Criminal Code. The accusation was based firstly on the activities that the applicants were alleged to have engaged in on behalf of the Workers’ Party of Kurdistan (PKK) (harbouring militants and providing one of them with medical care, negotiating with local leaders or proffering threats against them to make them help the PKK establish itself in their regions) and secondly on the content of oral and written statements by the applicants expressing support for PKK activities. On the evening of 21 June 1994 the offences of which the applicants were accused were announced in the news bulletin of the publicly owned TRT 1 television channel.
15. On 8 December 1994, the date of the final hearing before the Ankara National Security Court, the applicants learned that the prosecution was proposing to alter the charge to belonging to an armed gang within the meaning of Article 168 of the Criminal Code. The National Security Court invited the applicants to submit their observations on this new characterisation of the offences. The applicants’ lawyers were not present at the hearing because they had decided to protest against the National Security Court’s refusal to adopt a procedural measure they had requested of it.
16. In a judgment of 8 December 1994 the Ankara National Security Court sentenced the four applicants to fifteen years’ imprisonment for belonging to an armed gang within the meaning of Article 168, paragraph 2, of the Turkish Criminal Code. It rejected the charge under Article 125 of the Criminal Code, which provided for the death penalty in the event of treason against the integrity of the State.
17. It found it established that the applicants had engaged in intensive “separatist” activity under instructions from leaders of the PKK, a separatist armed gang seeking to found a Kurdish State in south-eastern and eastern Turkey. In that context it noted the following points: in the run-up to the 1991 parliamentary election the applicants had given speeches under the PKK banner at meetings where slogans had been shouted such as “Long Live the PKK” and “Strike guerrillas strike, found Kurdistan”; the applicants had provoked unrest among the population and created an atmosphere that had undermined the authority of the State; they had worn PKK colours when they were sworn in as members of the National Assembly in November 1991; at the congresses of their political parties, the HADEP and the DEP, the PKK flag had been hoisted instead of the Turkish flag and the Turkish Republic had been described as an occupier and enemy; conversations recorded between three of the four applicants and heads of clans (aşiret reisi) in south-eastern and eastern Anatolia had revealed that the former had used threats to try to persuade the latter to join or support the PKK; one of the applicants had harboured a PKK militant in his official residence, had helped him to obtain medical treatment and had fraudulently induced the State to pay his hospital bills; another had harboured in his home PKK militants preparing to join those who were already involved in field operations in the region; and all the applicants had made statements on behalf of the PKK in foreign countries and spread lies about the Turkish State intended to uphold the PKK’s views. The National Security Court also rejected an application by a co-defendant for a public hearing of a witness for the prosecution owing to the danger that the witness might suffer reprisals at the hands of the PKK.
18. When classifying the facts found in the instant case as offences under Article 168 rather than Article 125 of the Criminal Code, the National Security Court referred to the case-law according to which Article 125 defined a crime in terms of the ends pursued and Article 168 in terms of the means deployed. Treason against the integrity of the State within the meaning of Article 125 was a crime which could only be made out if it was established that acts had been committed which were likely to pose a real threat to the State’s survival. Acts of violence and terrorism could fall within the scope of Article 125 if they were serious enough to pose such a threat. Article 168, paragraph 2, on the other hand, made it an offence merely to belong to an armed organisation which was already considered to be acting for a purpose contrary to Article 125. The material element of the offence lay in the fact that the persons in question belonged to an armed organisation of the aforementioned type complete with a system of disciplinary rules and a hierarchical structure. In that context, it was not necessary for the defendants themselves to have committed acts posing a threat to the State’s survival. However, Article 168 did require a specific mental element, namely that the offenders were aware that they belonged to the illegal organisation.
19. The applicants and the public prosecutor at the Ankara National Security Court appealed on points of law against the judgment of 8 December 1994.
20. The public prosecutor argued that the offences were indeed punishable under Article 125 of the Turkish Criminal Code.
21. The applicants submitted for their part that the criminal proceedings had been brought for a political purpose, namely to suppress the opinions of members of Parliament defending the Kurdish cause. They contended that the National Security Court by which they had been convicted was a special political court which could not be considered an independent and impartial tribunal.
They also asserted that they had been denied a fair trial because, among other things, their equality of arms with the prosecution had not been respected. They complained in particular that they had been denied the assistance of a lawyer during their fifteen days in police custody; that their representatives had not had access to the documents on the case file during the preliminary investigation; that pressure had been brought to bear on their representatives by the government as their defence had been the subject of reports by the Turkish secret services and their access to the courtroom had sometimes been impeded; that the applications filed by their representatives had never been allowed by the National Security Court; that they had not been permitted to examine before that court the witnesses interviewed by the prosecution during the preliminary investigation or the experts appointed by the prosecution; that their applications for the examination of the sound and video recordings made by the prosecution had been rejected by the National Security Court for no valid reason; that the evidence on which their conviction had been based had not been read out at the hearing; and that their applications for further witnesses to be heard and second opinions to be sought had been dismissed by the National Security Court. The applicants also argued that the difficulties encountered by certain lawyers and foreign delegations when attempting to enter the courtroom had infringed the requirement of a public hearing. Lastly, they criticised the National Security Court for laying the activities of all pro-Kurdish organisations, whether legal or illegal, at their door and taking account of findings of a political nature having no probative value with regard to the accusations levelled against them.
22. In a judgment of 26 October 1995 the Court of Cassation upheld the decision at first instance as to the applicants’ guilt and the sentences imposed on them.
23. On the other hand it held that some of the reasons given by the Ankara National Security Court in its judgment of 8 December 1994 could not be permitted to stand. When the telephone conversations between the applicants and the head of the PKK had been recorded the statutory provisions intended to safeguard the freedom of communication had been infringed; the fact that the applicants’ diaries contained the names and addresses of PKK leaders did not prove the accusations; and the fact that some of the defendants (including two of the four applicants) had taken part in a press conference held by the head of the PKK could not in itself be regarded as an offence.
24. In assessing each of the applicants’ guilt, the Court of Cassation took account of various public communiqués that they had issued. In those documents they had described the parliamentary oath as racist on the ground that it omitted any reference to the Kurdish identity, and asserted that the Turkish government was waging war on the Kurdish population, that Kurdish uprisings had been suppressed using methods of genocide and that the national rights of the Kurdish people were denied by the Turkish State.
25. Regarding Leyla Zana, the Court of Cassation noted the following: she had undergone political training in a PKK camp in Bekaa (Syria); she had had four conversations with the head of a clan in south-eastern Turkey, advising him not to prevent the PKK from attacking State targets and encouraging him to telephone the head of the PKK, addressing him as “Mr Secretary General”; she had twice visited the head of another clan to encourage him to join the PKK to help found Kurdistan; she had handed over to the PKK one of its opponents who had been abducted by PKK militants; she had described slogans such as “Long Live Apo [Apo is a diminutive used to refer to Abdullah Öcalan, the head of the PKK]” or “Long Live Kurdistan”, shouted at a demonstration in Cizre, as “slogans of the Kurdish people”; she had declared on German television that she felt like a foreigner in Turkey and that the Turkish parliament, of which she was a member, was constantly taking decisions whose aim was to wipe out the Kurdish people; and she had taken part in a demonstration and a press conference held by the PKK in Brussels and had addressed the participants from a rostrum draped with the PKK flag.
26. Regarding Orhan Doğan, the Court of Cassation noted the following: he had knowingly harboured a PKK militant in his home owing to his organic links with the PKK; he had helped the militant in question to obtain medical treatment and had fraudulently had the costs reimbursed by the National Assembly; he had harboured four other PKK militants who were about to return to the organisation’s camps; he had made statements to foreign embassies to the effect that the villagers leaving Şirnak in August 1992 were actually fleeing the State forces; and he had stated at demonstrations that the Turkish State was repressing the Kurdish people in various ways, while describing the PKK as an army.
27. Regarding Hatip Dicle, the Court of Cassation noted the following: he had put pressure on the head of a clan in south-eastern Turkey to join the PKK, whose aims he had said were to found Kurdistan and destroy the enemy; he had asked the persons attending a public meeting in Diyarbakır to observe a minute’s silence in honour of the PKK’s dead, asserting that the Turkish army had come to the region to repress the Kurdish people; he had stated in an interview given to a Belgian daily newspaper that the Kurds’ ideal would be to found a Kurdish State and that they had been fighting for their freedom since the Treaty of Lausanne (1923); he had described the PKK as a movement with popular roots; he had stated that all those who were against the Kurds should be expelled from their territory even if that would cost them their lives; he had said that the Kurds were engaged in an armed resistance to ensure their survival and that the alleged fight against terrorism amounted to an attempt to crush the Kurds’ claims to nationhood; he had attempted to justify the terrorist attack on the cadets of the military college for infantry conscripts, in which four people were killed and twenty injured, by saying that everyone in uniform was a potential target by virtue of the international conventions on the laws of war; and he had stated at a meeting of his party that the State could not solve the Kurdish problem by banning the PKK.
28. Lastly, regarding Selim Sadak, the Court of Cassation found the following facts established: he had put pressure on the head of a clan in south-eastern Turkey to accept the authority of the PKK; he had asked the inhabitants of the village of Şenoba (in south-east Turkey) to relinquish their positions as village guards, explaining that they were in Kurdistan and that the Kurdish war of national liberation was soon to be launched against the fascist Turkish State; he had described police officers escorting persons in police custody on suspicion of having been active within the PKK as torturers, while stating that he would prevent the repression of the Kurds by the Turks and that the Kurds would demand some form of retribution; at a meeting held by the PKK in Neuchâtel (Switzerland), he had described the PKK as a guerrilla army fighting for the independence of Kurdistan and the Kurdish people; and in a communiqué sent to foreign embassies in Turkey he had declared that the villagers leaving Şirnak in August 1992 had in fact been fleeing the State forces.
29. Article 125 of the Turkish Criminal Code provides:
“It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State’s independence, breaking its unity or removing part of the national territory from the State’s control.”
30. Article 168 of the above Code provides:
“Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a
6-3-b
6-3-d


ITEMID: 001-4686
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: P.A. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a citizen of the United Kingdom, born in 1928 and living in Armagh in Northern Ireland. She was the wife of P.A.
She is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin.
On 17 May 1974 P.A. was killed in a terrorist bombing in Monaghan in the Republic of Ireland. The car used for the bombing was stolen in Portadown, Northern Ireland on the same day.
The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicle and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC.
On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed.


ITEMID: 001-104462
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BELAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in the town of Pyatigorsk in Stavropol Region. The Russian Government (“the Government”) were represented by Messrs P. Laptev and G. Matyushkin, the successive Representatives of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a military serviceman.
On 8 June 1999 the Khabarovsk Garrison Military Court (“the Khabarovsk Court”) ruled in the applicant’s favour. It declared certain actions of the Magadan Regional Military Commissioner (“the Regional Commissioner”) unlawful. The Khabarovsk Court further ordered the Regional Commissioner to appoint the applicant to a specific post, to send him for medical examination and to pay him certain monetary sums. The applicant was also granted monetary compensation for the nonpecuniary damage caused by the Regional Commissioner’s unlawful actions.
On 30 November 1999 the Khabarovsk Court’s judgment was mainly upheld on appeal by the Far-Eastern Circuit Military Court.
On 8 December 1999 the applicant was appointed to the post pursuant to the judgments in his favour.
The Regional Commissioner invited the applicant to undergo the medical examination on 10 December 1999. The applicant failed to arrive to the hospital of the Magadan Regional Directorate of the Interior for that purpose either on that date or on any date thereafter.
The monetary compensation ordered by the Khabarovsk Court’s judgment of 8 June 1999 was fully paid to the applicant’s account in several tranches in 1999 and 2000.
On 15 November 2001 the Pyatigorsk Garrison Military Court (“the Pyatigorsk Court”) again found for the applicant. It declared the Regional Commissioner’s order on the applicant’s discharge unlawful. The Pyatigorsk Court further ordered the Regional Commissioner to reinstate the applicant, to re-calculate his salary and to pay compensation to him and to give him four days of paid leave. The Pyatigorsk Court’s judgment was upheld on appeal by the North-Caucasian Circuit Military Court on 27 February 2002.
On 30 August 2002 the applicant was formally re-instated by the Regional Commissioner pursuant to the Pyatigorsk Court’s judgment of 15 November 2001. The applicant was informed accordingly by the letter of the acting Regional Commissioner of 3 September 2002. He was also invited to report to the Regional Commissioner’s office in order to comply with other formalities. The documents in question were handed over to the applicant on 16 September 2002.
As the applicant failed to arrive to his office, the Regional Commissioner on 11 February 2003 decided to deposit the monetary award due to the applicant with a bank account which had been opened for that purpose with the Savings Bank of Russia.
On 4 April 2003 the military officials attempted to hand down the corresponding documents to the applicant personally but he refused to take them. In July 2003 the applicant received the documents which had been mailed to him.
Relevant domestic law and practice are summarized, among many other judgments and decisions of the Court, in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007.


ITEMID: 001-57420
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1979
DOCNAME: CASE OF AIREY v. IRELAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Just satisfaction reserved
TEXT: Particular facts of the case
8. Mrs. Johanna Airey, an Irish national born in 1932, lives in Cork. She comes from a humble family background and went to work at a young age as a shop assistant. She married in 1953 and has four children, the youngest of whom is still dependent on her. At the time of the adoption of the Commission’s report, Mrs. Airey was in receipt of unemployment benefit from the State but, since July 1978, she has been employed. Her net weekly wage in December 1978 was £39.99. In 1974, she obtained a court order against her husband for payment of maintenance of £20 per week, which was increased in 1977 to £27 and in 1978 to £32. However, Mr. Airey, who had previously been working as a lorry driver but was subsequently unemployed, ceased paying such maintenance in May 1978.
Mrs. Airey alleges that her husband is an alcoholic and that, before 1972, he frequently threatened her with, and occasionally subjected her to, physical violence. In January 1972, in proceedings instituted by the applicant, Mr. Airey was convicted by the District Court of Cork City of assaulting her and fined. In the following June he left the matrimonial home; he has never returned there to live, although Mrs. Airey now fears that he may seek to do so.
9. For about eight years prior to 1972, Mrs. Airey tried in vain to conclude a separation agreement with her husband. In 1971, he declined to sign a deed prepared by her solicitor for the purpose and her later attempts to obtain his co-operation were also unsuccessful.
Since June 1972, she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. Airey’s alleged physical and mental cruelty to her and their children, and has consulted several solicitors in this connection. However, she has been unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor willing to act for her.
In 1976, Mrs. Airey applied to an ecclesiastical tribunal for annulment of her marriage. Her application is still under investigation; if successful, it will not affect her civil status.
Domestic law
10. In Ireland, although it is possible to obtain under certain conditions a decree of nullity - a declaration by the High Court that a marriage was null and void ab initio -, divorce in the sense of dissolution of a marriage does not exist. In fact, Article 41.3.2o of the Constitution provides: "No law shall be enacted providing for the grant of a dissolution of marriage."
However, spouses may be relieved from the duty of cohabiting either by a legally binding deed of separation concluded between them or by a court decree of judicial separation (also known as a divorce a mensa et thoro). Such a decree has no effect on the existence of the marriage in law. It can be granted only if the petitioner furnishes evidence proving one of three specified matrimonial offences, namely, adultery, cruelty or unnatural practices. The parties will call and examine witnesses on this point.
By virtue of section 120 (2) of the Succession Act 1965, an individual against whom a decree of judicial separation is granted forfeits certain succession rights over his or her spouse’s estate.
11. Decrees of judicial separation are obtainable only in the High Court. The parties may conduct their case in person. However, the Government’s replies to questions put by the Court (see paragraph 7 above) reveal that in each of the 255 separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer.
In its report of 9 March 1978, the Commission noted that the approximate range of the costs incurred by a legally represented petitioner was £500 - £700 in an uncontested action and £800 - £1,200 in a contested action, the exact amount depending on such factors as the number of witnesses and the complexity of the issues involved. In the case of a successful petition by a wife, the general rule is that the husband will be ordered to pay all costs reasonably and properly incurred by her, the precise figure being fixed by a Taxing Master.
Legal aid is not at present available in Ireland for the purpose of seeking a judicial separation, nor indeed for any civil matters. In 1974, a Committee on Civil Legal Aid and Advice was established under the chairmanship of Mr. Justice Pringle. It reported to the Government in December 1977, recommending the introduction of a comprehensive scheme of legal aid and advice in this area. At the hearings on 22 February 1979, counsel for the Government informed the Court that the Government had decided in principle to introduce legal aid in family-law matters and that it was hoped to have the necessary measures taken before the end of 1979.
12. Since Mrs. Airey’s application to the Commission, the Family Law (Maintenance of Spouses and Children) Act 1976 has come into force. Section 22 (1) of the Act provides:
"On application to it by either spouse, the court may, if it is of the opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it, order the other spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and whether the other spouse is or is not residing at that place, prohibit him from entering that place until further order by the court or until such other time as the court shall specify."
Such an order - commonly known as a barring order - is not permanent and application may be made at any time for its discharge (section 22 (2)). Furthermore, the maximum duration of an order given in the District Court - as opposed to the Circuit Court or the High Court - is three months although provision is made for renewal.
A wife who has been assaulted by her husband may also institute summary criminal proceedings.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85705
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: RABINOVITZ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Ms Edita Rabinovitz, is an American national who was born in 1926 and lives in Maryland (United States of America). She was represented before the Court by Ms P. Krtková, a lawyer practising in Praha. 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 an unspecified date in 1994 the applicant instituted restitution proceedings before the Prague 1 District Court (obvodní soud). On 9 February 1994 the case was formally registered by the court.
The proceedings terminated by a decision of the Constitutional Court (Ústavní soud) of 19 August 2004 which was notified to the applicant’s lawyer on 23 August 2004.
On 20 January 2007 the applicant applied for compensation pursuant to Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-84817
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FEDORTSI v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1933. He died on 2 July 2005. In a letter of 10 March 2006 the applicant's son, Mr Yuriy Mikhaylovych Fedortsi, informed the Court that he wished to pursue the application.
5. In December 1999 the applicant brought proceedings against the Moskovska State Mine (ДП “Шахта Московська”, hereafter “the Mine”) seeking recovery of occupational disability allowance arrears.
6. On 22 February 2000 the Shakhtarsk Town Court (Шахтарський міський суд, hereafter “the Shakhtarsk Court”) found in part for the applicant and awarded him 2,108.64 Ukrainian Hryvnas (UAH) in compensation for allowance arrears. Considering this sum insufficient, the applicant appealed.
7. On 20 March 2000 the Donetsk Regional Court (Донецький обласний суд) partially quashed this judgment and remitted the case for a fresh consideration.
8. On 24 May 2000 the Shakhtarsk Court allowed the applicant's claim in part and awarded him UAH 3,616.63 in compensation for allowance arrears. The applicant again appealed.
9. On 11 September 2000 the Donetsk Regional Court quashed the judgment of 24 May 2000 and remitted the case for a fresh consideration.
10. On 21 November 2000 the Shakhtarsk Court raised the applicant's award up to UAH 3,980.16. This judgment was not appealed against.
11. In 2001 the applicant lodged with the Supreme Court (Верховний Суд України) a request for leave to appeal against the judgment of 21 November 2000 under the new cassation procedure. On 18 September 2001 the panel of three judges of the Supreme Court rejected his request.
12. On 14 December 2002 the Shakhtarsk Town Bailiffs' Service (Відділ держаної виконавчої служби Шахтарського міського управління юстиції, hereafter “the Shakhtarsk Bailiffs' Service”) instituted enforcement proceedings in respect of the Shakhtarsk Court's judgment of 21 November 2000.
13. On 24 July 2001 the Ministry of Fuel and Energy (Міністерство палива і енергетики) decided to wind up the Mine.
14. On 28 August 2001 the Shakhtarsk Bailiffs' Service remitted the applicant's writ of execution and enforcement case-file to the Mine's liquidation commission.
15. On 3 December 2002 the applicant was paid the court award in full. On the same date the enforcement proceedings were terminated.
16. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77995
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TSFAYO v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 10. In 1993, the applicant arrived in the United Kingdom from Ethiopia and sought political asylum. She was initially provided with accommodation by the social services department of Hammersmith and Fulham Council (“the Council”). On 21 April 1997, the applicant moved into accommodation owned by a housing association. A member of the housing association's staff assisted the applicant to complete her application for housing and council tax benefit which was submitted to the Council in April 1997. This application was successful.
11. The applicant was required by law to renew her application for housing and council tax benefit on an annual basis. Because of her lack of familiarity with the benefits system and her poor English, the applicant failed to submit a benefit renewal form to the Council by the required time. In September 1998, the applicant received correspondence from the housing association about her rent arrears. As the applicant did not understand the correspondence, she sought assistance from the Council's advice office. After obtaining this advice the applicant realised that her housing and council tax benefit had ceased. She therefore submitted a prospective claim as well as a backdated claim for both types of benefit to 15 June 1998.
12. The prospective claim was successful and the applicant began to receive housing benefit again from 4 October 1998, but on 4 November 1998 the Council rejected the application for backdated benefit because the applicant had failed to show “good cause” why she had not claimed the benefits earlier.
13. During the period from 15 June to 4 October 1998 the applicant lost housing benefit of GBP 860.00, and since her rent in any event exceeded the benefit to which she had been entitled, her rent arrears amounted to GBP 1,068.86. The housing association commenced possession proceedings, seeking the applicant's eviction for non-payment of rent, and the Council also brought proceedings based on the applicant's failure to pay council tax of GBP 163.36 for the year 1998/99. On 19 October 1998 a court order was made allowing the Council to deduct GBP 2.60 per week from the applicant's income support of GBP 35.87.
14. On 9 November 1998, the applicant's legal advisers wrote to the Council requesting that they reconsider their refusal. However, by letter dated 4 February 1999, the Council informed the applicant that they were upholding their initial decision to refuse council tax and housing benefits.
15. The applicant appealed. The case was heard on 10 September 1999 by Hammersmith and Fulham Council Housing Benefit and Council Tax Benefit Review Board (“the HBRB”). The HBRB consisted of three Councillors from the Council. It was advised by a barrister from the Council's legal department. The applicant was represented by Fulham Legal Advice Centre and the Council was represented by a Council benefits officer. The HBRB rejected the applicant's appeal, finding that the applicant must have received some correspondence from the local authority during the period from 15 June to 4 October 1998 concerning the council tax she owed, although no such correspondence was produced to it.
16. On 13 September 1999 the housing association's possession proceedings against the applicant concluded with a court order requiring her to pay off the rent arrears at GBP 2.60 a week (in addition to the GBP 2.60 per week for council tax arrears).
17. On 6 December 1999, the applicant sought judicial review of the HBRB's decision. She complained that the HBRB had acted unlawfully because it had failed to make adequate findings of fact or provide sufficient reasons for its decision. The applicant also alleged that the HBRB was not an “independent and impartial” tribunal under Article 6 § 1 of the Convention.
18. On 31 January 2000, the High Court dismissed the applicant's application for leave to apply for judicial review on the grounds that the Convention had not yet been incorporated into English law, and further dismissed the application on the merits, on the grounds that the HBRB's decision was neither unreasonable nor irrational. The applicant was unable to appeal because legal aid was refused. The applicant subsequently obtained Counsel's opinion that the appeal had no prospects of success.
19. Housing benefit (“HB”) is a means-tested benefit payable towards housing costs in rented accommodation. It is not dependent on or linked to the payment of contributions by the claimant.
20. The HB scheme is administered by the local authority. Payments of HB are subsidised by central Government, normally to the extent of 95%, although where HB is paid as a result of a decision that the claimant had good cause for a late claim the subsidy is only 50%.
21. HB is awarded for “benefit periods” and entitlement for each period is dependent on a claim being made in time in accordance with the statutory rules. If a claimant makes a late claim, any entitlement to arrears of HB depends on the claimant establishing “good cause” for having missed the deadline. The case-law establishes that the concept of “good cause” involves an objective judgment as to whether this individual claimant, with his or her characteristics such as language and mental health, did what could reasonably have been expected of him or her.
22. At the relevant time, a claim to housing benefit was first considered by officials employed by the local authority and working in the housing department. If the benefit was refused the claimant was entitled to a review of the decision, first by the local authority itself, then by a HBRB, which comprised up to five elected councillors from the local authority. Since 2 July 2001, HBRBs have been replaced by tribunals set up under the Child Support, Pensions and Social Security Act 2000.
23. The procedure before the HBRB was governed by the Housing Benefit (General) Regulations 1987. Regulation 82 provided, as relevant:
“(2) Subject to the provisions of these Regulations
(a) the procedure in connection with a further review shall be such as the Chairman of the Review Board shall determine;
(b) any person affected may make representations in writing in connection with the further review and such representations shall be considered by the Review Board;
(c) at the hearing any affected person has the right to
(i) be heard, and may be accompanied and may be represented by another person whether that person is professionally qualified or not, and for the purposes of the proceedings at the hearing any representative shall have the rights and powers to which any person affected is entitled under these regulations;
(ii) call persons to give evidence;
(iii) put questions to any person who gives evidence;
(d) the Review Board may call for, receive or hear representations and evidence from any person present as it considers appropriate.”
24. The Review Board's Good Practice Guide provided, inter alia, that “the general principle underlying the proceedings” was the observance of natural justice. The HBRB should “be fair and be seen to be fair to all parties at all times”. The HBRB was “in law, a separate body from the authority” and “independent”. Before the hearing of a case checks were carried out to ensure that Board Members “have had no previous dealings with the case, and that they have no relationship with the claimant or any other person affected”.
25. In the House of Lords' judgment in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23, (“Alconbury”), Lord Slynn of Hadley described the scope of judicial review as follows (§ 50):
“It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.” ...
Lord Slynn continued that he was further of the view that a court had power to quash an administrative decision for a misunderstanding or ignorance of an established and relevant fact (§§ 51-53 of the judgment, and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169) and, where human rights were in issue, on grounds of lack of proportionality.
26. In Runa Begum (FC) v. London Borough of Tower Hamlets [2003] UKHL 5 (see paragraph 30 below), Lord Bingham of Cornhill made it clear that a court on judicial review (§§ 7-8):
“... may not only quash the authority's decision ... if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or if the decision maker is shown to have misunderstood or been ignorant of an established and relevant fact ... It is plain that the ... judge may not make fresh findings of fact and must accept apparently tenable conclusions on credibility made on behalf of the authority... .”
27. Since the coming into force of the Human Rights Act 2000, the English courts have considered on a number of occasions the extent to which judicial review can remedy defects of independence in a first instance administrative tribunal.
28. In Alconbury (cited above), the House of Lords considered the procedure whereby the Secretary of State had the power himself to determine certain matters of planning and compulsory purchase, subject to judicial review. Following the Court's judgment in Bryan v. the United Kingdom, no. 19178/91, §§ 44-47, Series A no. 335-A, the House of Lords held unanimously that since the decisions in question involved substantial considerations of policy and public interest it was acceptable, and indeed desirable, that they be made by a public official, accountable to Parliament. Although the Secretary of State was not an independent and impartial tribunal, he (or rather, his Department's decision-making process) offered a number of procedural safeguards, such as an inspector's inquiry with the opportunity for interested parties to be heard, and these safeguards, together with the availability of judicial review (see paragraphs 25-26 above) was sufficient to comply with the requirement for “an independent and impartial tribunal” in Article 6 § 1.
29. Lord Hoffmann explained the democratic principles underlying this approach as follows (§§ 69 and 73):
“In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them. Sometimes the subject-matter is such that Parliament can itself lay down general rules for enforcement by the courts. Taxation is a good example; Parliament decides on grounds of general interest what taxation is required and the rules according to which it should be levied. The application of those rules, to determine the liability of a particular person, is then a matter for independent and impartial tribunals such as the General or Special Commissioners or the courts. On the other hand, sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis. Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved.
... There is however another relevant principle which must exist in a democratic society. That is the rule of law. When ministers or officials make decisions affecting the rights of individuals, they must do so in accordance with the law. The legality of what they do must be subject to review by independent and impartial tribunals. This is reflected in the requirement in Article 1 of Protocol No. 1 that a taking of property must be 'subject to the conditions provided for by law'. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament. ...”
30. The House of Lords returned to these issues in Runa Begum (cited above). The appellant had been offered a flat by the local authority, but considered it unsuitable for herself and her children because, she alleged, it was on a housing estate known for drugs and crime and in close proximity to a friend of her ex-husband. She requested a review of the local authority's decision. The reviewing officer was a re-housing manager employed by the same local authority but who had not been involved in the original decision and who was senior to the original decision-maker. She found that there were no serious problems on the estate and that the relationship between Runa Begum and her husband was not such as to make it intolerable for them to risk meeting each other.
31. It was accepted that the case involved the determination of civil rights and that the reviewing officer was not, in herself, an “independent and impartial tribunal”. The House of Lords held unanimously that the existence of judicial review was sufficient in this context for the purposes of Article 6 § 1. In reaching this conclusion, Lord Bingham of Cornhill considered three matters as “particularly pertinent”: first, that the legislation in question was part of a far-reaching statutory scheme regulating the important social field of housing, where scarce resources had to be divided among many individuals in need; secondly, that although the council had to decide a number of factual issues, these decisions were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the housing officer had the specialist knowledge and experience to make; thirdly, the review procedure incorporated a number of safeguards to ensure that the reviewer came to the case with an open mind and took into account the applicant's representations. Lord Bingham commented, generally, on the inter-relation between the Article 6 § 1 concept of “civil rights” and the requirement for an “independent and impartial tribunal”, that (§ 5):
“the narrower the interpretation given to 'civil rights', the greater the need to insist on review by a judicial tribunal exercising full powers. Conversely, the more elastic the interpretation given to 'civil rights', the more flexible must be the approach to the requirement of independent and impartial review if the emasculation (by over-judicialisation) of administrative welfare schemes is to be avoided. ...”
32. It was argued before the House of Lords that when, as in Bryan and Alconbury, the decision turned upon questions of policy or “expediency”, it was not necessary for the appellate court to be able to substitute its own opinion for that of the decision-maker; that would be contrary to the principle of democratic accountability. However, where, as in Runa Begum, the decision turned upon a question of contested fact, it was necessary either that the appellate court should have full jurisdiction to review the facts or that the primary decision-making process should be attended with sufficient safeguards as to make it virtually judicial. In response, Lord Hoffmann (§§ 37-44) underlined that the fact-finding in Bryan had been closely analogous to a criminal trial, since the inspector's decision that Mr Bryan had acted in breach of planning control would be binding on him in any subsequent criminal proceedings for failing to comply with the enforcement notice. Lord Hoffmann continued:
“A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as [housing the homeless]. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government. This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators. Nor is the possibility of an appeal sufficient to compensate for lack of independence and impartiality on the part of the primary decision-maker (see De Cubber v. Belgium [judgment of 26 October 1984, Series A no. 124-B]).
But utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare. I said earlier that in determining the appropriate scope of judicial review of administrative action, regard must be had to democratic accountability, efficient administration and the sovereignty of Parliament. This case raises no question of democratic accountability. ...
On the other hand, efficient administration and the sovereignty of Parliament are very relevant. Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes ... .”
33. Following the House of Lords' judgment in Alconbury, but before that in Runa Begum, the High Court examined whether the HRRB procedure at issue in the present application was compliant with Article 6, in a case where the determination of the central issues of fact depended on an assessment whether the claimant was telling the truth: Bewry (R. on the application of) v. Norwich City Council [2001] EWHC Admin 657. The Secretary of State conceded that the HBRB lacked the appearance of an independent and impartial tribunal. On the question whether judicial review proceedings were sufficient to remedy the problem, Moses J observed:
“There is however, in my judgment, one insuperable difficulty. Unlike an inspector [in a planning case], whose position was described by Lord Hoffman [in R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929: see Holding and Barnes plc v. the United Kingdom (dec.), no. 2352/02, ECHR 2002] as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. The dispute was between the claimant and the Council. The case against payment of benefit was presented by employee of the Council and relied upon the statement of an official of the Council (the Fraud Verification Officer in the Council's Revenue office). ...
The reasoning carefully set out by the Board enables the court to ensure that there has been no material error of fact. Even in relation to a finding of fact, this court can exercise some control if it can be demonstrated that the facts found are not supported by the evidence. But, in that respect, the court can only exercise limited control. It cannot substitute its own views as to the weight of the evidence ... In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of a [planning] inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary facts and the inferences drawn from those facts. ...
Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party in the dispute.”
The Secretary of State was granted leave to appeal against this judgment but, in the event, decided not to appeal.
The Bewry judgment was approved and followed, after the House of Lords' judgment in Runa Begum, by the High Court in R. (Bono and another) v. Harlow District Council [2002] EWHC 423.
34. In each of its annual report between 1988/89 and 1997/98, the Council on Tribunals (a statutory advisory committee which reports to the Lord Chancellor) recommended the abolition of the HBRB system, because of concerns about lack of independence and the potential for injustice.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1