ITEMID: 001-83297
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GALSTYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies - art. 6 : time and facilities to prepare defence);No violation of Art. 6-1;Violation of Art. 6-1+6-3-b;No violation of Art. 6-1+6-3-c;Violation of Art. 11;Not necessary to examine Art. 10;Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1958 and lives in Yerevan.
5. In 2003 a presidential election was held in Armenia with its first round taking place on 19 February. The applicant acted as an authorised election assistant (վստահված անձ) for the main opposition candidate in the election. At the second round of the election, which took place on 5 March, the applicant was a member of one of the district election commissions. Following the election, the applicant participated in a series of rallies of protest organised in Yerevan by the opposition parties.
6. The applicant alleged, and the Government did not dispute, that at the beginning of April police officers of the Central District Police Station of Yerevan (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժին) came to the applicant's home while he was absent. Having found out about this, the applicant went to the police station to inquire about the reasons for their visit. At the Police Station, the Deputy Head ordered the applicant to stop participating in the demonstrations.
7. On 7 April 2003 at 17h00 a demonstration was held in the centre of Yerevan on the occasion of Mother's Day. The demonstration took place on the Mashtots Avenue next to the Research Institute of Ancient Manuscripts (Մատենադարան). It appears that the demonstration was of a political nature and criticism of the Government and of the conduct of the presidential election was voiced.
8. The applicant alleged, and the Government did not dispute, that the demonstration was organised by women and was attended by about 30,000 people, the majority of whom were female. Traffic was suspended by the traffic police on the relevant stretch of the Avenue prior to the commencement of the demonstration. The applicant did not as such participate in the demonstration since most men, including himself, were observing it from a distance, standing on both sides of the Avenue. Their task was to encourage the women and to prevent possible provocations.
9. According to the applicant, at around 17h30 he went home. On his way home, about 100-150 metres away from the site of the demonstration, he was approached by two persons in civilian clothes, who showed police identity papers and took him to the Central District Police Station.
10. At the Police Station, the arresting police officers drew up a record of the applicant's arrest (արձանագրությաւն բերման ենթարկելու մասին) in which it was stated that the applicant had been “arrested at around 17h30 on the Mashtots Avenue for obstructing traffic and behaving in an anti-social way at a demonstration”.
11. One of the arresting police officers reported to the Head of the Police Station (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժնի պետ) that:
“... on 7 April 2003 we were on duty at the Mashtots Avenue, where a demonstration was being held and a great number of people were gathered. While on duty, we noticed one person who was obstructing traffic, behaving in an anti-social way and inciting others to follow his example. This person was brought to the Police Station...”
12. The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up.
13. The police officers questioned the applicant. The applicant made a written statement (արձանագրություն բացատրություն վերցնելու մասին) in which he submitted that he had participated in a demonstration three days before. Having found out about the demonstration of 7 April 2003, he had also gone there. He further submitted that he was aware of a demonstration to be held in two days and that he would participate in it. The applicant added that he had not violated, and would not violate, any laws during these demonstrations. This statement was torn up by the police officers, who said that there was a pencil mark and asked the applicant to write a new one. When he wrote the new statement with a similar content, the police officers stopped him at the point when he was about to write about not having committed any offences during the demonstrations and said that what he had written was enough.
14. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant had “participated in a demonstration, during which he violated public order”. The applicant's actions were qualified under Article 172 of the Code of Administrative Offences (CAO) (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք) as minor hooliganism. This record was signed by the applicant. He also put his signature in the section certifying that he was made aware of his rights under Article 267 of the CAO and in the section marked as “other information relevant for the determination of the case”, where he also added “I do not wish to have a lawyer”.
15. The applicant alleged that he had initially refused to sign this record and requested a lawyer. This became the reason why he was kept in the Police Station for the following five and a half hours. During this period, the police officers were persistently trying to convince him to sign the record and to refuse a lawyer. They told him that it was unnecessary to have a lawyer and spend money for such a minor case. They further said that the case had been already pre-decided by their superiors, so a lawyer would only harm rather than help, as he may end up spending quite some time in the Police Station because of that. On the other hand, if he signed the record and refused a lawyer, he would be immediately taken to a court, where at worst a small fine would be imposed and he would be released. The applicant finally succumbed and agreed to sign the record and to refuse a lawyer. The same day at 23h00 he was taken to judge M. of the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան), who examined the case.
16. The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to judge M. at 19h30. During this period, the police officers explained to the applicant his right to have a lawyer and advised him to avail himself of this right, which he did not wish to do. The record of an administrative offence was signed by the applicant voluntarily and without any objections. Furthermore, the applicant failed to initiate any actions aimed at the defence of his rights, such as lodging motions or availing himself of other procedural rights guaranteed by Article 267 of the CAO, despite having been made aware of them.
17. The materials of the applicant's administrative case, which were transmitted by the police to judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant's arrest; (4) the record of the applicant's search; and (5) the applicant's written statement. All these documents were signed by the applicant except the police report.
18. Judge M., after a brief hearing, sentenced the applicant under Article 172 of the CAO to three days of administrative detention. The judge's entire finding amounted to the following sentence:
“On 7 April 2003 at around 17h00 ... on the Mashtots Avenue [the applicant], together with a group of people, obstructed street traffic, violated public order by making a loud noise, and incited other participants of the demonstration to do the same...”
19. The decision stated that it was subject to review by the Chairman of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ).
20. According to the record of the court hearing – drawn up in a calligraphic handwriting – the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge explained the applicant's rights to him and informed him of the possibility to challenge the judge and the clerk. The applicant did not wish to lodge any challenges. He stated that he was aware of his rights and did not wish to have a lawyer. The judge read out the motion submitted by the police, seeking to impose administrative liability on the applicant. The applicant stated that he, together with a group of unknown people, had blocked the traffic on the Mashtots Avenue. He said that he did this because it was a demonstration and everybody else was doing the same. He made noise since everybody else was making noise, but he did not push anybody. No questions were put to the applicant. Thereafter, the judge read out and examined the materials prepared by the police. Having familiarised himself with these materials, the applicant accepted that he had signed the record of an administrative offence but objected to being subjected to administrative liability since the incriminated acts had been committed also by others. The judge departed to the deliberation room, after which he returned and announced the decision. The time of the hearing was not recorded.
21. The applicant alleged, and the Government did not explicitly dispute, that the above record was a fake and was drafted at some point after the hearing in order to create an appearance of lawfulness. In reality there was no clerk and the hearing was not being recorded. The hearing lasted only about five minutes and was conducted in judge M.'s office. The applicant further alleged that, contrary to what the record stated, only the judge, the applicant and the accompanying police officer were present at the hearing. The latter did not as such participate in the hearing and his functions were limited only to bringing the applicant before the judge. petitioned the judge to summon some witnesses and requested a lawyer. The judge listened silently to the applicant, signed some papers and let the applicant go, after which he was taken to a detention centre where he served his sentence.
22. On 14 April 2003 the applicant applied to a local human rights NGO, “February 22nd” («Փետրվարի 22» իրավապաշտպան կազմակերպություն), complaining in detail about the above-mentioned events and seeking its assistance. He submitted, inter alia, that the police officers had prompted him to sign a document refusing a lawyer, persuading him that a lawyer was not necessary in his case.
23. On 28 April 2003 the NGO complained to the General Prosecutor (ՀՀ գլխավոր դատախազ) on behalf of the applicant, seeking to institute criminal proceedings against the police officers and judge M.
24. By a letter of 27 May 2003 the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) informed the NGO that the decision of 7 April 2003 had been well-founded and there were no grounds for lodging a protest.
25. The relevant provisions of the Constitution read as follows:
“Everyone has the right to express his opinion. It is prohibited to force anyone to give up or change his opinion. Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas through any information medium regardless of frontiers.”
“Citizens have the right to hold peaceful assemblies, rallies, processions and demonstrations without carrying arms.”
“Everyone has the right to have his violated rights restored, as well as, in the determination of a charge against him, the right to a fair and public hearing by an independent and impartial tribunal with a respect for equality of arms.”
“Everyone has the right to legal assistance. In cases prescribed by law legal assistance is provided free of charge.
Everyone has the right to have a defence counsel from the moment of his arrest, detention or accusation.”
“No restrictions may be placed on the exercise of the rights and freedoms guaranteed under Articles 23-27 of the Constitution other than such as are prescribed by law and are necessary in the interests of national security or public safety, for the protection of public order, health or morals, or for the protection of the rights, freedoms, honour and reputation of others.”
“The guarantor of independence of the judicial authorities is the President of [Armenia]. He presides over the Council of Justice.”
“The independence of the courts is guaranteed by the Constitution and by law...
The Council of Justice is composed of nine judges, elected in accordance with a procedure prescribed by law for a period of five years by secret ballot at the general meeting of judges of Armenia, and of four legal scholars, two of which are appointed by the President of [Armenia] and the other two by the National Assembly. The meetings of the Council of Justice are presided over by the President of the Court of Cassation who does not have the right to vote.”]
“The Council of Justice ..., upon the proposal of the Minister of Justice, shall prepare and submit for the President's approval the annual lists of professional fitness and career development of judges on the basis of which appointments are made...”
“A judge [is] irremovable. He shall stay in his post until the age of 65.”
“In administering justice, a judge ... [is] independent and obey[s] only the law.”
26. The relevant provisions of the Code, as in force at the material time, read as follows:
“A person shall be liable to an administrative penalty for offences envisaged by this Code, if these offences by their nature do not attract a criminal penalty in accordance with the law.”
“An administrative penalty is a form of liability which is imposed in order to educate the person, who has committed an administrative offence, to uphold the Soviet laws and to respect the rules of socialist way of life, as well as to deter the offender and others from committing new offences.”
“The following administrative penalties may be [inter alia] imposed for committing an administrative offence: ... (2) a fine; ... (6) correctional labour; (7) administrative detention.”
“Administrative detention is prescribed and imposed only in exceptional cases for certain types of administrative offences for a period not exceeding fifteen days. Administrative detention is imposed by a court (a judge).”
“Minor hooliganism, i.e. obscene swearing at a person or an offensive annoyance of a person in a public place and other similar actions which disturb public order and peace of citizens, leads to an imposition of a fine insufficient, of administrative detention not exceeding 15 days.”
“Judges of first instance courts examine cases concerning administrative offences envisaged by ... [inter alia] Article 172 ... of this Code.”
“Cases on administrative offences are examined in public.”
“The public prosecutor, who ... monitors the enforcement of laws in the context of proceedings on administrative cases, is entitled to institute the administrative proceedings; to familiarise himself with the materials of the case; to scrutinise the lawfulness of actions of the authorities (public officials) in the course of the administrative proceedings; to participate in the examination of the case; to lodge motions and make conclusions in respect of questions arising during the examination of the case...”
“Any facts, on the basis of which the authorities (public officials) establish the existence or absence of an administrative offence and the guilt of a particular person, as well as other circumstances decisive for the proper outcome of the case, constitute evidence in an administrative case.
Such facts are established by the record of an administrative offence, the statement of the person against whom administrative proceedings are brought, testimonies of the victim and witnesses, expert opinions, exhibits, the record of seizure of objects and documents, as well as by other documents.”
“The record of an administrative offence shall be drawn up by an authorised official...”
“The record of an administrative offence shall contain: the date and the location when and where it was drafted; the post and name of the person drafting it; information concerning the offender; the location, time and essence of the administrative offence; the legal act prescribing a penalty for the offence committed; names and addresses of witnesses and victims, if any; the explanation of the offender; other information necessary for the determination of the case.
The record shall be signed by the person drafting it and the offender...
If the offender refuses to sign the record, a relevant entry is made in the record. The offender is entitled to make explanations and comments concerning the content of the record, which are to be attached to it, and also to indicate the reasons for refusing to sign it.
When drafting the record, the offender must be made aware of his rights and obligations under Article 267 of this Code and a relevant entry must be made in the record.”
“The record [of an administrative offence] shall be transmitted to the authority (public official) authorised to examine the administrative case.”
“... in order to prevent administrative offences, if other measures of compulsion have been exhausted, and to ensure the timely and accurate examination of cases and the enforcement of decisions in cases on administrative offences, a person may be subjected to an administrative arrest, search, inspection of belongings and confiscation of belongings and documents, for the purpose of verifying his identity and drawing up a record of an administrative offence, if this record cannot be drawn up on the spot and if such a record is required to be drawn up.”
“An administrative arrest must be recorded[. The record] must indicate the date and place, the post and the name of the person drawing up the record; information about the arrestee; the time, place and grounds of the arrest.”
“Only authorities (officials) authorised by the laws of the USSR and Armenia can impose an administrative arrest on a person who has committed an administrative offence[. These include, inter alia,] the internal affairs authorities in cases of minor hooliganism...”
“The person against whom administrative proceedings are brought has the right to familiarise himself with the materials of the case, to make statements, to submit evidence, to lodge motions, and to have legal assistance during the examination of the case.”
“Any person, who may be aware of any circumstance connected to the case which needs to be clarified, may be called as a witness in an administrative case.”
“Cases concerning administrative offences envisaged under ... [inter alia] Article 172 ... of this Code shall be examined within one day...”
“At the hearing, [the examining authority] announces the case that is to be examined and the person against whom administrative proceedings are brought, explains to the persons participating in the case their rights and obligations, and reads out the record of an administrative offence. [The examining authority] hears the persons participating in the case, examines the evidence and rules on motions. If a public prosecutor participates in the case, [the examining authority] hears his opinion.”
“In examining the administrative case, the authority (public official) must clarify whether an administrative offence has been committed; whether the person in question is guilty of committing it; whether an administrative penalty should be imposed; whether there are mitigating and aggravating circumstances; whether pecuniary damage has been caused...”
“The court's (the judge's) decision to impose an administrative penalty is final and not subject to appeal in administrative proceedings, except for the cases prescribed by law.”
“The prosecutor can lodge a protest against the decision taken on an administrative case.”
“The judge's decision to impose an administrative penalty for an offence envisaged under ... [inter alia] Article 172 ... can be quashed or modified by the judge himself upon a protest of the prosecutor and, whether or not such a protest is lodged, by the chairman of the superior court.”
“In administering justice, a judge is independent and obeys only the law. In administering justice, a judge is not accountable to any public authority or a public official.”
“Any interference by public authorities, bodies of local self-government and their officials, political parties, non-governmental associations and media with a judge's performance of his functions of administering justice is impermissible and leads to accountability prescribed by law.
A judge is not obliged to give explanations concerning a case or the substance of materials under his consideration or to grant access to them other than in cases and according to a procedure prescribed by law.”
27. Chapter 9 of these Regulations prescribes the rules for organising and holding the proficiency test on the basis of which the annual lists of professional fitness and career development of judges are prepared by the Ministry of Justice.
28. On 16 April 2003 the Constitutional Court adopted a decision on the basis of an application lodged by the main opposition candidate in the presidential election challenging the conduct and results of the election (ՀՀ սահմանադրական դատարանի որոշումը ՀՀ նախագահի 2003 թ. մարտի 5-ի ընտրության արդյունքները վիճարկելու վերաբերյալ գործով). The Constitutional Court noted, inter alia, that a number of authorised election assistants had been subjected to administrative detention in the second round of the election and had thus been deprived of the possibility of actively pursuing their duties any further. The Court further stated that subjecting to administrative detention for having participated in unauthorised demonstrations and marches constituted an interference with the right to freedom of peaceful assembly guaranteed by Article 11 of the Convention. First of all, such application of this procedure was in contradiction with European “rule of law” standards, and secondly, all such decisions made by the courts were to be a topic for discussion in the Council of Court Chairmen and the Council of Justice in terms of both their form and substance.
29. The relevant extract from the Resolution provides:
“9. The Assembly further invites the authorities to revise the Administrative Code without delay. It urges them to abolish the provisions concerning the administrative detention and to refrain from applying them in the interim. It warns the authorities of the abuses their application leads to, which are seriously at variance with the principles of the Organisation.”
30. The relevant extracts from the Report provide:
“32. The day after the first round of the presidential election held on 9 February 2003, several demonstrations and protest meetings took place in Yerevan and several towns at the prompting of opposition political parties.
33. Between the two rounds of the elections, and as from 22 February, more than 200 people were arrested by the police at the behest of the authorities – among them some members of the political parties in opposition or of their campaign staff, and agents of these parties. Despite the Parliamentary Assembly's stipulation that the authorities must no longer avail themselves of the arbitrary procedure of administrative detention prescribed by the Administrative Code, these persons were arrested, taken into custody without notification of their families then brought before the courts and sentenced to a fortnight's administrative internment in over 80 cases, or to fines in 65 other cases. The persons concerned were tried in camera and with few exceptions did not receive the assistance of a lawyer. Many were unable to participate in the second round of the election.
34. Further arrests were made after the second round of the election. The Ministry of Justice has acknowledged that 132 people were arrested between 17 and 25 March, 69 of them being sentenced to an “administrative” custodial penalty and 63 to a fine. According to the OSCE, 77 is the number sentenced to a term of imprisonment over that period.
35. In our previous report we commented on the outrageousness and arbitrariness of this summary procedure prescribed by the Administrative Code. An authentic remnant of the Communist style of justice inherited from the Soviet era, this procedure denies the person charged the right to inform his/her family or to request the immediate assistance of a lawyer, and enables a judge, under an arrangement for immediate trial in camera, to have him/her held for a fortnight maximum. This procedure is simply disgraceful...
37. During our August 2003 visit, the authorities justified their decision to arrest and convict these demonstrators by invoking the need to shield law and order from their misdeeds. They claim that the demonstrators were just thugs, “antisocial elements”, alcoholics or drug addicts. This sort of talk has a ring to it that is like a revival of the evidently not so distant Soviet past.
38. We expect the authorities to do their utmost in the future to reconcile the freedom to demonstrate and the freedom to come and go with respect for law and order. This right must be secured to all and sundry, especially at election time. Preservation of law and order must not serve to condone wrongful deprivation or restriction of freedom to form assemblies and to demonstrate.”
31. The relevant extracts from the Resolution provide:
“14. The Assembly is shocked by the scandalous use that continues to be made of the arbitrary procedures concerning administrative detention provided for in the Administrative Code, which is totally incompatible with its strongly-worded statement in Resolution 1304 of September 2002 that the Armenian authorities should no longer make use of these procedures. It firmly condemns the arrest and conviction of over 270 people – members of the opposition parties, sympathisers and office-holders – between the two rounds of the presidential election and at the end of the second round. It expects the Armenian authorities to discuss by February 2004 the issue of administrative detention provided for in the Administrative Code in co-operation with Council of Europe experts and to send the draft amendments for the Council of Europe's expertise by April 2004.
15. The Assembly asks the Armenian authorities to immediately begin examining, in co-operation with the Council of Europe, the question of the balance to be struck between freedom of assembly and demonstration and respect for public order, and to adopt a law on demonstrations and public meetings in full compliance with Council of Europe principles and standards.”
32. The relevant extracts of the Briefing Paper provide:
“The opposition demonstrations of February to April 2003
In the period between the [19 February 2003] round and [5 March 2003] runoff of the presidential election, the [main opposition candidate] campaign staged several rallies in the center of Yerevan, each of which attracted tens of thousands of supporters...
After the [5 March 2003] runoff the [main opposition candidate] campaign continued to stage rallies in the center of Yerevan at intervals of several days or a week, to protest alleged election fraud...
Rendering opposition rallies illegal
Although ... rallies and protest demonstrations [in support of the main opposition candidate] were largely peaceful, the governing authorities portrayed them as a threat to public order and political stability, and used this as grounds for arrests...
The campaign of arrests
[21-27 February 2003]: the first wave of arrests
In a first wave of arrests, roughly 160 chiefs and staff of regional and district [main opposition candidate] campaign headquarters, [authorised election assistants], and even drivers were taken to their local police stations...
Dozens of activists were arrested at their homes in different regions of the country the morning after police supposedly picked them out, among several tens of thousands, at an 'unauthorised' rally in Yerevan in the late afternoon of [21 February 2003].
When police officers took opposition activists from their homes it was invariably on the pretext that the local police chief wanted to talk to them. Some activists accompanied the officers willingly, and some initially refused, but met threats in response...
In some cases where the police did not initially find the activist at home, they resorted to violent or extra-legal tactics. There were instances of the police taking family members as hostages, to compel activists to give themselves up...
[1-17 March 2003]: conditional releases, continuing pressure
Following international pressure ... about seventy-five of the eighty-six men serving election rally-related administrative detention sentences were released during the weekend of [1-2 March]...
[18-22 March 2003]: the second wave of arrests
During this five-day period, as post-election protest rallies continued, the police arrested approximately ninety ... activists [supporting the main opposition candidate] in Yerevan, Abovian, Artashat district, Talin, and other areas. Most were taken from their homes – some for the second time. Dozens received administrative detention sentences.
[7-9 April 2003]: around the presidential inauguration
Several men and women were arrested after [a 7 April 2003] demonstration in central Yerevan, and given administrative fines or terms of detention...
Due process violations in administrative offences proceedings
Incommunicado preliminary detention
On bringing opposition activists to the police station, officers kept them in incommunicado detention, depriving them of counsel. This allowed police wide scope to pressure the activists to admit guilt.
In many cases, the police refused to inform or acknowledge to relatives and lawyers of people who had gone missing that they were in police custody. A lawyer who took on the cases of more than thirty activists taken in the first wave of arrests said that simply finding the people he had been tasked to represent was his primary task, and providing legal assistance came a distant second. The wife of an activist arrested in Armavir said: 'For five days they gave no information. We did not know whether he was alive or dead.'
When lawyers, relatives, or human rights groups tried to find detainees in custody, police did not cooperate. Lawyer [T. T.-Y.] said: 'When we go to police departments, we are told the detainee is in court. When we go to the court, they say he or she is in one of the police departments. Before the confusion is resolved, a court verdict for fifteen days of administrative detention has already been issued.'
In Armenia, there is no system of obligatory, transparent registration of all detainees at police stations. [T.-Y.] noted: 'Wherever we went, they said, 'No, he's not here.' The lack of any documentation of detentions makes it difficult for us to dispute. They can claim afterward that the detainee was not there at the exact time we came and asked.' In two cases Human Rights Watch documented, police pretended detainees were not at a particular police station when they patently were.
The police kept detainees for as long as they considered necessary, with little apparent reference to procedural rights guarantees...
Since most were brought in on the pretext of 'a chat' with the police chief, the legal basis of their detention was not immediately clear – whether or not they were arrested, and if so, whether under the administrative or criminal code. With some detained activists the police were initially at a loss as to what to charge them with. With others, the police manipulated the ambiguity, threatening both criminal and administrative charges. At Echmiadzin police station, officers threatened to press criminal charges against [one defendant] if he refused to confess that he resisted and swore at the policemen who had just taken him from his home. He recalled: 'I signed on the strength of their promise that I would only get two days of administrative detention.'
From mid-March onward, the police extracted either written confessions or undertakings to take no further part in rallies from a number of activists by threatening to beat them. [One defendant], detained at the Yerevan City Police Department, stated that her three interrogators pointed out the lockup in the courtyard, said it was full of women, and that they would all be truncheoned that night: 'Then they showed me black spots on the carpet and said it was blood. Through this kind of pressure they forced me to write that I took part in a rally and obstructed traffic.' In several cases, police did use violence: [one defendant] alleged she was hit on the head with a plastic bottle of water; [another defendant] recounted being hit with a pistol butt, then punched and kicked.
Flawed court hearings
In almost all cases, administrative court hearings against opposition activists were closed and cursory. Courts considered only police evidence, and did not give the defendant the opportunity to summon defence counsel or defence witnesses.
Several factors indicate that the judges acted under the influence of political authorities. In many cases, judges issued the harshest administrative sentence possible – fifteen days detention – to opposition activists. Some judges at [the Kentron and Nork-Marash District of Yerevan] were frank with defendants about their one-sentence-fits-all-policy. A judge told [one defendant]: 'Those who took part in the rally – we are giving them all fifteen days.' When [another defendant] asked a judge to consider handing him a shorter sentence, the latter replied that: 'his instructions were to put us all away for fifteen days – no less.' Judges' questioning of several defendants was blatantly political, such as: 'Why do you play at opposition?' and, 'Why do you bad-mouth the government?' They warned some not to participate in opposition rallies again.
The police appeared to exercise control over the courts when they were in administrative session. During the week of [22-28 February 2003], when [the Kentron and Nork-Marash District Court of Yerevan] tried nearly one hundred [main opposition candidate] supporters, 'Red Berets' – police commandos – sealed off the building to the public. The chairman of the court acknowledged that their deployment was an initiative of the police leadership on which the court was not consulted...
Some defendants demanded lawyers, but court officials and police told them that they were either 'not necessary' or 'not allowed' in administrative cases. Although he had a contract with [a defendant], lawyer [N.B.] was barred from entering [on 22 February 2003 the Kentron and Nork-Marash District Court of Yerevan] to defend him.
In the absence of public scrutiny or defence counsel, judges applied sloppy or arbitrary reasoning in their examination of cases, or none whatsoever.
In most cases, hearings lasted from a few seconds to a few minutes, and the written judgments were pre-prepared. The judge started [one defendant's] hearing by reading out his sentence – fifteen days detention for having participated in an unauthorised march. When [the defendant] objected that he had not participated in the march, he related, 'The judge just said, 'It is proven' and called a policeman to take me away.'
While some judges alluded to the existence of proof without feeling it necessary to present it, others floated hypotheses, such as: 'You took part in an unauthorised rally, and you committed acts of hooliganism on Mashtots Avenue. You shouted or broke something, is that right?' In other hearings, judges did not advance any arguments. Two [opposition] party activists from the Shengavit district of Yerevan were each given three days' detention without learning what they were charged with, while a judge quelled [another defendant's] objection to the absence of stated information or grounds for his fifteen-day sentence with the comment: 'Just say thank you that we didn't press a criminal charge.'
The lack of outside scrutiny also enabled several cases of demonstrably gross arbitrariness by the courts. On [22 February] 2003 the Kentron and Nork-Marash District Court of Yerevan] handed out some administrative detention sentences without conducting hearings in the presence of defendants. At least one police van with several detained activists inside was seen to drive up to the court, where a court official emerged and reportedly handed prepared judgments to the escorting police officers. The van then drove away without the defendants having set foot in court...”
VIOLATED_ARTICLES: 11
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-108007
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF ORLOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Angelika Nußberger;Ann Power-Forde
TEXT: 4. The applicant was born in 1954 and lives in Odessa.
5. On 13 April 2000 the police detained him on suspicion of illicit possession of drugs. On 19 April 2000 the applicant was released from detention. Throughout the ensuing criminal proceedings he has remained on a written undertaking not to abscond.
6. On 1 September 2000, following the completion of the pre-trial investigations, the case was referred to the Zhovtnevyy District Court of Odessa, which on 31 January 2003 absolved the applicant for lack of proof against him. On 22 April 2003 the Odessa Regional Court of Appeal (“the Court of Appeal”) quashed the above judgment for procedural breaches and remitted the case for retrial.
7. Between 22 January and 15 December 2004 the proceedings were suspended as the applicant absconded and his whereabouts were unknown.
8. On 13 April 2006 the Prymorskyy District Court of Odessa (“the Prymorskyy Court”), to which the case was transferred, found the applicant guilty as charged, sentenced him to one year’s imprisonment and exempted him from the sentence as the charges against him became time-barred. On 20 June 2006 the Court of Appeal quashed that judgment for procedural breaches and remitted the case for retrial.
9. On 12 June 2007 the Prymorskyy Court discontinued the criminal proceedings against the applicant as the charges against him became timebarred. On 18 September 2007 the Court of Appeal quashed the above decision for procedural breaches and remitted the case for retrial. The proceedings are still pending before the Prymorskyy Court.
10. In the course of the proceedings fifty-eight hearings have been adjourned due to the applicant’s, his lawyer’s and the witnesses’ failure to appear or upon the applicant’s or his lawyer’s requests. These delays attributable to the applicant have protracted the proceedings by three years and eight months approximately. Seven hearings have been adjourned due to the absence of the judges. Eighteen hearings have been adjourned due to the witnesses’ failure to appear, in respect of whom the courts have on a number of occasions applied compulsory summonses. Twenty-seven hearings have been adjourned due to the absence of the Polish interpreter, on whose presence the applicant has insisted, even though the domestic courts have established that the applicant has been fully conversant in the language of the proceedings. Three expert examinations have been ordered and have lasted for about two months.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57965
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF S.W. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 7-1
JUDGES: C. Russo;John Freeland;Simon Brown
TEXT: 8. The applicant is a British citizen. His relationship with his wife, whom he married in 1987, was turbulent and came under great strain in 1990 when he became unemployed. In the early evening of 18 September 1990, she told him that for some weeks she had been thinking of leaving him and that she regarded the marriage as over. Prior to that date they had been sleeping separately - according to the applicant, for one night, or according to his wife, for five nights. The applicant did not accept that his wife meant what she said and they had a row following which he ejected her from the house, bruising her arm. She went to her next door neighbours and called the police, who subsequently visited and spoke to both the applicant and his wife separately. Later the same evening she re-entered the house and the applicant had sexual intercourse with her. Shortly afterwards she left the house, having first tried to take their child with her. She went to the neighbours crying and distressed, complaining to them and to the police, whom she telephoned, that she had been raped at knife-point.
9. On 19 September 1990 the applicant was charged with rape, under section 1 (1) of the Sexual Offences Act 1956; threatening to kill, contrary to section 16 of the Offences against the Person Act 1861; and assault occasioning actual bodily harm, in breach of section 47 of the latter Act.
10. On 30 July 1990 the defendant in another case, R. v. R., had been sentenced to three years’ imprisonment by the Crown Court for attempted rape and assault occasioning actual bodily harm against his wife. The trial judge, Mr Justice Owen, had rejected the defendant’s submission that he could not be convicted in light of a common law principle stated by Sir Matthew Hale CJ in his History of the Pleas of the Crown published in 1736:
"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."
In his judgment ([1991] 1 All England Law Reports, 747) Mr Justice Owen noted that it was a statement made in general terms at a time when marriage was indissoluble. Hale CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution. The bald statement had been reproduced in the first edition of Archbold on Criminal Pleadings, Evidence and Practice (1822, p. 259) in the following terms: "A husband also cannot be guilty of rape upon his wife."
Mr Justice Owen further examined a series of court decisions (R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 113; R. v. Clarke [1949] 2 All England Law Reports 448; R. v. Miller [1954] 2 All England Law Reports 529; R. v. Reid [1972] 2 All England Law Reports 1350; R. v. O’Brien [1974] 3 All England Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see paragraphs 22-25 below), recognising that a wife’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions. He added:
"I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband; with that, I do not find it difficult to agree. However, I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ...
If it was, it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside. However, I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape."
On the question of what circumstances would suffice in law to revoke the consent, Mr Justice Owen noted that it may be brought to an end, firstly, by a court order or equivalent. Secondly, he observed, it was apparent from the Court of Appeal’s judgment in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied consent could be withdrawn by agreement between the parties. Such an agreement could clearly be implicit; there was nothing in the case-law to suggest the contrary. Thirdly, he was of the view that the common law recognised that a withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, would amount to a revocation of the implicit consent. He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case.
11. An appeal to the Court of Appeal, Criminal Division, was dismissed on 14 March 1991 ([1991] 2 All England Law Reports 257). Lord Lane noted that the general proposition of Sir Matthew Hale in his History of the Pleas of the Crown (1736) (see paragraph 10 above) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch. Further, Lord Lane made an analysis of previous court decisions, from which it appears that in R. v. Clarence (1888), the first reported case of this nature, some judges of the Court for Crown Cases Reserved had objected to the principle. In the next reported case, R. v. Clarke (1949), the trial court had departed from the principle by holding that the husband’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him. Almost every court decision thereafter had made increasingly important exceptions to the marital immunity (see paragraph 24 below). The Court of Appeal had accepted in R. v. Steele (1976) that the implied consent to intercourse could be terminated by agreement. This was confirmed by the Court of Appeal in R. v. Roberts (1986), where it held that the lack of a non-molestation clause in a deed of separation, concluded on expiry of a non-molestation order, did not revive the consent to intercourse.
Lord Lane added the following observations:
"Ever since the decision of Byrne J in R. v. Clarke in 1949, courts have been paying lip-service to Hale CJ’s proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes.
There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.
...
It seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present-day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment. That in the end comes down to a consideration of the word ‘unlawful’ in the 1976 Act."
Lord Lane then critically examined the different strands of interpretation of section 1 (1) (a) of the 1976 Act (see paragraph 20 below) in the case-law, including the argument that the term "unlawful" excluded intercourse within marriage from the definition of rape. He concluded:
"... [W]e do not consider that we are inhibited by the 1976 Act from declaring that the husband’s immunity as expounded by Hale CJ no longer exists. We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.
The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.
Had our decision been otherwise and had we been of the opinion that Hale CJ’s proposition was still effective, we would nevertheless have ruled that where, as in the instant case, a wife withdraws from cohabitation in such a way as to make it clear to the husband that so far as she is concerned the marriage is at an end, the husband’s immunity is lost."
12. On 23 October 1991, on a further appeal by the appellant in the above case, the House of Lords upheld the Court of Appeal’s judgment, declaring, inter alia, that the general principle that a husband cannot rape his wife no longer formed part of the law of England and Wales. It stressed that the common law was capable of evolving in the light of changing social, economic and cultural developments. Whilst Sir Matthew Hale’s proposition had reflected the state of affairs at the time it was enunciated, the status of women, and particularly of married women, had changed out of all recognition in various ways. Apart from property matters and the availability of matrimonial remedies, one of the most important changes had been that marriage was in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband (R. v. R. [1991] 4 All England Law Reports 481).
13. On 31 March 1992 the above appellant R. brought an application (no. 20190/92) to the Commission. The Commission referred his application (C.R. v. the United Kingdom) to the Court on the same date as the present case (see paragraphs 1 and 3 above).
14. At the commencement of his trial on 16 April 1991, the applicant submitted that there was no case to answer on the rape charge. In the first place, he argued that the trial judge, Mr Justice Rose, should follow the Court of Appeal’s approach in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) and should not consider himself bound by the 14 March 1991 judgment of that court in R. v. R. in so far as it purported to change the principle that a husband could not be found guilty of rape upon his wife. Secondly, he maintained that the retrospective effect of the change in the law effected by R. v. R. should be pronounced incompatible with Article 7 (art. 7) of the Convention. He referred, inter alia, to the judgment by the Court of Justice of the European Communities in R. v. Kent Kirk (European Court Reports [1984] 2689), dealing with a penal provision in relation to fishing, which was allegedly imposed retroactively.
15. With regard to the applicant’s first submission, Mr Justice Rose held on 18 April 1991 that he considered himself bound by the Court of Appeal’s judgment in R. v. R. He was not persuaded that there was a conflict between the ratios of that decision and the judgment in R. v. Steele. Moreover, the decision in R. v. R. was not reached in ignorance of R. v. Steele but had regard to the latter.
With regard to the applicant’s second submission, Mr Justice Rose observed:
"... I shall assume for the purpose of the present argument that the effect of Kirk is via the Treaty of Rome and the decision of the [Court of Justice of the European Communities] to render Article 7 para. 1 (art. 7-1) part of English law. However, it seems to me that the effect of Article 7 para. 2 (art. 7-2) is to prevent reliance by the defendant on Article 7 para. 1 (art. 7-1).
Furthermore, ... a succession of cases ... in which the [Court of Justice] ... has developed the principle of protection of fundamental rights in cases concerning economic and financial matters ... it seems to me in so far as they touch upon the matter at all, and it is accepted that they do not deal with criminal offences of the kind with which I am concerned, no doubt preserve the fundamental right of a woman not to have non-consensual sexual intercourse forced upon her.
Furthermore, the nature of the common law, developing as it does from judicial decision to judicial decision, but being deemed to be always that which it is currently declared to be, is such that if Article 7 (art. 7) is part of English law, Article 7 para. 2 (art. 7-2) is not incompatible with that common law approach. Non-consensual sexual intercourse is in English law, as no doubt it is in the legal systems of many civilised nations, ... a criminal offence. In so far as there was by the end of the 19th Century in English law ... a matrimonial exception, that matrimonial exception has, particularly over the last 30 or 40 years, been whittled away by judicial decision to the extent that ... it no longer exists. It seems to me that to say that in these circumstances this defendant is in the terms of Article 7 para. 1 (art. 7-1) at risk of conviction in relation to conduct ‘which did not constitute a criminal offence under national or international law at the time when it was committed’ is or would be an abuse of language. Accordingly, [counsel for the applicant’s] second submission fails ... Having regard to the conclusions which I have reached ... there is, in my judgment, a case to answer."
16. On 19 April 1991 the applicant was found guilty by the jury of all three offences (see paragraph 9 above). He was sentenced to a total of five years’ imprisonment: five years for rape, two years for making a threat to kill and three months for the offence of assault occasioning actual bodily harm - the sentences of two years and three months were expressed to run consecutively to each other but concurrently with the five-year sentence.
17. The applicant lodged an appeal against conviction and sentence in which he repeated the submissions set out in paragraph 14 above.
18. In view of the House of Lords’ ruling of 23 October 1991 in R. v. R. (see paragraph 12 above) the applicant was advised by his lawyers on 3 January 1992 that his appeal against conviction offered no prospect of success. He therefore withdrew his appeal against conviction on 15 January 1992. His appeal against sentence was dismissed by the Court of Appeal on 30 July 1992.
19. The offence of rape, at common law, was traditionally defined as unlawful sexual intercourse with a woman without her consent by force, fear or fraud. By section 1 of the Sexual Offences Act 1956, "it is a felony for a man to rape a woman".
20. Section 1 (1) of the Sexual Offences (Amendment) Act 1976 provides, in so far as it is material, as follows:
"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if
- (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ..."
21. On 3 November 1994 the Criminal Justice and Public Order Act 1994 replaced the above provisions by inserting new subsections to section 1 of the Sexual Offences Act 1956, one of the effects of which was to remove the word "unlawful":
"1. (1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if - (a) he has sexual intercourse with a person ... who at the time of the intercourse does not consent to it ..."
22. Until the case of R. v. R. the English courts, on the few occasions when they were confronted with the issue whether directly or indirectly, had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage. The proposition of Sir Matthew Hale quoted above (see paragraph 10) has been reaffirmed until recently, for example in the case of R. v. Kowalski ([1987] 86 Criminal Appeal Reports 339), which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault. Mr Justice Ian Kennedy, giving the judgment of the court, stated, obiter:
"It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife."
And he went on to say that that principle was
"dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement".
In another example, Lord Justice O’Connor in the R. v. Roberts case ([1986] Criminal Law Reports 188) held:
"The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she cannot unilaterally withdraw it."
23. However, on 5 November 1990, Mr Justice Simon Brown held in R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept of marital exemption in rape was misconceived:
"Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point, I would shrink, if sadly, from adopting this radical view of the true position in law. But adopt it I do. Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century. In my judgment, the position in law today is, as already declared in Scotland, that there is no marital exemption to the law of rape. That is the ruling I give."
On the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All England Law Reports 759) Mr Justice Rougier upheld the general common law rule, considering that the effect of section 1 (1) (a) of the 1976 Act was that the marital exemption embodied in Hale’s proposition was preserved, subject to those exceptions established by cases decided before the Act was passed. He further stated:
"... there is an important general principle to be considered here, and that is that the law, especially the criminal law, should be clear so that a man may know where he stands in relation to it. I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel’s advice before behaving as alleged, but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto."
On 15 January 1991, Mr Justice Swinton Thomas in R. v. S. followed Rougier J, though he considered that it was open to judges to define further exceptions. Both Rougier and Swinton Thomas JJ stated that they regretted that section 1 (1) (a) of the 1976 Act precluded them from taking the same line as Simon Brown J in R. v. C.
24. In its Working Paper 116 "Rape within Marriage" completed on 17 September 1990, the Law Commission stated:
"2.8 It is generally accepted that, subject to exceptions (considered ... below), a husband cannot be convicted of raping his wife ... Indeed there seems to be no recorded prosecution before 1949 of a husband for raping his wife ...
...
2.11 The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply. The limits of this law are difficult to state with certainty. Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ..."
The Law Commission identified the following exceptions to a husband’s immunity:
- where a court order has been made, in particular:
(a) where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband (R. v. Clarke [1949] 33 Criminal Appeal Reports 216);
(b) where there has been a decree of judicial separation or a decree nisi of divorce on the ground that "between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality" (R. v. O’Brien [1974] 3 All England Law Reports 663);
(c) where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her (R. v. Steele [1976] 65 Criminal Appeal Reports 22);
(d) in the case of R. v. Roberts ([1986] Criminal Law Reports 188), the Court of Appeal found that where a non-molestation order of two months had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order;
- where no court order has been made:
(e) Mr Justice Lynskey observed, obiter, in R. v. Miller ([1954] 2 Queen’s Bench Division 282) that a wife’s consent would be revoked by an agreement to separate, particularly if it contained a non-molestation clause;
(f) Lord Justice Geoffrey Lane stated, obiter, in R. v. Steele that a separation agreement with a non-cohabitation clause would have that effect.
25. The Law Commission noted that it was stated in R. v. Miller and endorsed by the Court of Appeal in R. v. Steele that lodging a petition for divorce would not be sufficient.
It referred also to the ruling by Mr Justice Owen in the case of R. v. R. where an implied agreement to separate was considered sufficient to revoke the immunity and that, even in the absence of agreement, the withdrawal from cohabitation by either party, accompanied by a clear indication that consent to sexual intercourse had been terminated, would operate to exclude the immunity. It found this view difficult to reconcile with the approach in Steele that filing a divorce petition was "clearly" not sufficient. The ruling in R. v. R. appeared substantially to extend what had previously been thought to be the law, although it emphasised that factual separation, and not mere revocation of consent to intercourse, was necessary to remove the immunity.
26. The Law Commission pointed out that its inquiry was unusual in one important respect. It was usual practice, when considering the reform of common law rules, to consider the grounds expressed in the cases or other authorities for the current state of the law, in order to analyse whether those grounds were well-founded. However, that step was of little assistance here, not only because there was little case-law on the subject but also, and in particular, because there was little dispute that the reason set out in the authorities for the state of the law could not be supported (paragraph 4.1 of the Working Paper). The basis of the law was that intercourse against the wife’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir Mathew Hale in his dictum. This notion was not only quite artificial but, certainly in the modern context, was also quite anomalous. Indeed, it was difficult to find any current authority or commentator who thought that it was even remotely supportable. The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage (paragraph 4.2).
The concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement. Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities, they were not free to decide the terms of the contract; marriage was rather a status from which flow certain rights or obligations, the contents of which were determined by the law from time to time. This point had been emphasised by Mr Justice Hawkins in R. v. Clarence (1888) when he said: "The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law " (paragraph 4.3).
In this connection, the Law Commission stressed that "[t]he rights and duties arising from marriage have, however, changed over the years as the law has adapted to changing social conditions and values. The more modern view of marriage is that it is a partnership of equals" (paragraph 4.4). It then gave examples of such changes in the law and added:
"4.11 This gradual recognition of mutual rights and obligations within marriage, described in paragraphs 4.3-4.10 above, in our view demonstrates clearly that, whatever other arguments there may be in favour of the immunity, it cannot be claimed to be in any way justified by the nature of, or by the law governing, modern marriage."
27. The Law Commission made, inter alia, the provisional proposal that "the present marital immunity be abolished in all cases" (paragraph 5.2 of the Working Paper).
NON_VIOLATED_ARTICLES: 7
NON_VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-4690
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: O'KANE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen born in 1969 and currently detained in HM Prison Maze, Northern Ireland.
He is represented before the Court by Mr P. McGuckin, solicitor, Mr J. McCrudden QC and Mr S. McNeill, counsel, all practising in Northern Ireland.
A.
At 6.55 a.m. on 21 June 1993 the applicant was arrested at his home pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). He was then taken to Castlereagh Police Office where he was examined at 8.50 a.m. by Dr H. who certified him fit to be questioned.
Before being questioned the applicant was cautioned under Articles 3, 5 and 6 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). The applicant was also asked whether he wished to consult a solicitor. He replied that he did not.
In the course of the first day the applicant was interviewed on 6 occasions and responded to police questioning by denying his involvement in any of the offences put to him. He offered an alibi in response to a claim that he had been involved in a robbery at a bookmaking premises, which the police declined to accept. On the morning of the second day, the applicant informed the police that he was mistaken in this alibi and he offered another explanation for his whereabouts at the time of the robbery. Again the police refused to accept this alternative alibi. The applicant asked to consult with his solicitor, Mr McGuckin. On receipt of this request, at or about 10 a.m., a police officer made an attempt to contact Mr McGuckin at his office. The police officer was told by Mr McGuckin’s office that he was out and could not be contacted. It was not known when he would return but that the message that the applicant was requesting his presence at Castlereagh Police Office would be passed on to him. In these circumstances Detective Superintendent H., pursuant to non-statutory guidelines issued by the Secretary of State relating to the questioning of terrorist suspects, authorised the interview to continue although the applicant had not had an opportunity to consult with his solicitor.
When Mr McGuckin eventually arrived at Castlereagh Police Office some two and a half hours later, at 12.40 p.m., facilities were provided for the applicant to consult with him in private. The applicant had, however, already admitted to membership of the Irish Republican Army (“IRA”) and attempting to rob a post office. Following the consultation the applicant went on to make further verbal admissions and at 9.58 p.m. the applicant dictated a detailed statement to the interviewing officers describing his involvement in various terrorist offences, including a number about which he had not been questioned. After having made this statement, the applicant took the police to the area of his house and pointed out the various hiding places for weapons and explosives used by the IRA to which he had referred in his admission.
The applicant was tried by a judge sitting alone at Belfast Crown Court. The indictment upon which he was charged contained 33 counts alleging various terrorist offences including 3 counts of conspiracy to murder, possession of firearms and ammunition, possession of explosive substances, false imprisonment, hijacking, robbery and membership of the IRA.
The prosecution relied exclusively on the verbal admissions and the written statement which the applicant had made in the course of the second day of questioning at Castlereagh Police Office.
The applicant did not dispute that the evidence before the court accurately recorded admissions which he made in the course of being interviewed. However, he submitted through his counsel at a voir dire hearing that the confession evidence should be excluded under section 11(2) of the Northern Ireland (Emergency Provisions) Act 1991 (“the 1991 Act”) on the grounds that it had been obtained by violence and threats of violence or, alternatively, under section 11(3) of the 1991 Act, in order to avoid unfairness to the applicant or as otherwise being in the interests of justice.
The trial judge rejected the applicant’s contention that the admissions had been obtained by violence or threats of violence, being satisfied with the evidence given by the interviewing officers that they had treated the applicant fairly and properly. The trial judge therefore declined to exclude the evidence in the exercise of his general discretion under section 11(3) of the 1991 Act.
The applicant’s counsel also argued under section 11(3) of the 1991 Act that the applicant was someone who was mentally handicapped, or in any event someone of limited intelligence with a vulnerable personality; that he had been induced to make verbal confessions on the basis that he would be released as an informer provided he first revealed information about IRA activities, and a written confession on the basis that he would only get a two or three-year sentence; that notwithstanding the applicant’s request to consult with a solicitor the police had, pending the solicitor’s arrival, persisted in questioning the applicant; and that in these circumstances, whether severally or as a whole, the confession evidence should be excluded so as to avoid unfairness or otherwise in the interests of justice.
In rejecting the applicant’s argument under section 11(3) of the Act, the trial judge found that there was no medical evidence to support the assertion that the applicant was mentally handicapped. In this connection he noted that the consultant psychiatrist called by the applicant did not suggest that the applicant was mentally handicapped. As to the claim that the applicant was a vulnerable personality, the trial judge on the basis of the totality of the evidence
“[was] entirely satisfied that the [applicant] was in no sense a mentally handicapped person or a vulnerable personality …. I consider him to be a ‘street-wise’ person who did not require the presence of a friend or solicitor so that his interviews could be considered fair.”
Furthermore the trial judge rejected as lies the applicant’s evidence that he had, in confessing, been offered inducements by the interviewing officers. He also ruled that the relevant domestic law did not, in circumstances where a terrorist suspect had requested to consult with a solicitor, automatically require the interview to cease pending the solicitor’s arrival, and that Detective Superintendent H. had properly authorised the continuation of the interview in accordance with paragraph 33(b)(ii) of the non-statutory guidelines issued by the Secretary of State on the grounds that awaiting the arrival of the solicitor would cause unreasonable delay in the process of investigation. The trial judge was, in the circumstances, satisfied that it was fair to interview the applicant without waiting for his solicitor, that the confession evidence was reliable, and that he could properly act on it in convicting the applicant.
The applicant’s counsel contended in addition at the voir dire hearing that the applicant, on the morning of his arrest on 21 June 1993, had headaches and an upset stomach caused by heavy drinking the night before, and that he was not fit to be interviewed. These claims were rejected by the trial judge, who noted that no mention of them had been made to Dr H. or to police officers at the time. The judge accepted Dr H.’s evidence that the applicant was fit to be interviewed and considered that the complaints were a “deliberate exaggeration”.
On 11 July 1994 the applicant was convicted on 25 of the 33 counts in the indictment and sentenced to 18 years’ imprisonment.
The applicant appealed against conviction. On appeal the applicant challenged the judge’s findings in respect of the issues raised under section 11(3) of the 1991 Act. In respect of the denial of access to a solicitor, the applicant raised the further point that following the decision of the Commission in the case of John Murray v. the United Kingdom (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 66, opinion of the Commission) the denial of access to a solicitor was such as to deprive the applicant of a fair trial, and that accordingly the trial judge had erred in the exercise of his discretion in not excluding the confession evidence. The applicant did not challenge on appeal the ruling of the trial judge that the admissions had not been obtained through violence or threats of violence.
Following a review of the transcript of the evidence before the trial judge on the voir dire, the Court of Appeal (Hutton LCJ) upheld the trial judge’s findings in respect of the points which had been raised on behalf of the applicant under section 11(3) of the Act. In respect of the applicant’s further contention that in view of the decision of the Commission in the John Murray v. the United Kingdom case the trial judge had erred in not excluding the evidence, the Court of Appeal ruled that:
“The only right which Parliament intended to give a terrorist suspect in respect of access to a solicitor was the right to consult privately, after he had requested such a consultation given by section 45 [of the 1991 Act], subject to the restrictions set out in section 45(8). Moreover section 45 contains no prohibition against the police interviewing a terrorist suspect before his solicitor arrives to consult with him. ... [I]t is clear that a judge would be acting contrary to the will of Parliament if he were to hold in the exercise of his discretion under section 11(3) of the 1991 Act that an admission made by a terrorist suspect in an interview must be excluded from evidence on the sole ground that it was unfair that the suspect’s solicitor was not present at the interview or that the solicitor had not consulted with him prior to the interview.”
The Court of Appeal accordingly held that the trial judge had properly exercised his discretion in not excluding the confession evidence under section 11(3) of the Act.
B. Relevant domestic law and practice
1. Provisions governing inferences which may be drawn from an accused’s silence
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides as relevant:
“Circumstances in which inferences may be drawn from an accused’s failure to mention particular facts when questioned, charged, etc.
(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 by a constable trying to discover whether or by whom the offence was committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
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, paragraph (2) applies.
(2) Where this paragraph applies: ...
(c) the court ... in determining whether the accused is guilty of the offence charged, may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.”
2. Provisions governing access to a solicitor
The relevant provisions at the time of the applicant’s trial governing the right of access to legal advice as a terrorist suspect were contained in section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which, in so far as material, provides:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.”
Section 45 of the Act does not prohibit the police interviewing a terrorist suspect once a request has been made pending the arrival of his solicitor, nor is a person suspected of terrorist offences entitled – as provided for under paragraph 6.5 of Code C of the Criminal Evidence (Northern Ireland) Order 1989 in respect of non-terrorist offences – to have his solicitor present whilst he is interviewed: see section 66(12) of the 1989 Order which provides, in so far as relevant:
“Nothing in a code of practice ... applies to the exercise of powers conferred by or under [the Prevention of Terrorism (Temporary Provisions) Act 1989] or to a person arrested or detained under those provisions.”
Non-statutory guidelines issued by the Secretary of State for Northern Ireland in respect of the detention of persons suspected of terrorist offences, current at the time of the applicant’s arrest, provided, in so far as relevant, at paragraph 33:
“A person who asks for legal advice may not be interviewed or continue to be interviewed until he has received it unless: ...
(b) an officer of the rank of superintendent or above has reasonable grounds for believing that:
(i) delay will involve an immediate risk of harm to persons or serious loss of, or damage to, property; or
(ii) where a solicitor has been contacted and has agreed to attend, awaiting his arrival would cause unreasonable delay to the process of investigation; or
(c) the solicitor nominated by the person, or selected by him from a list:
(i) cannot be contacted;
(ii) has previously indicated that he does not wish to be contacted;
(iii) having been contacted, has declined to attend; or
(d) the person has given his agreement in writing that the interview may be started at once.”
The admissibility of confession evidence is governed by section 11 of the Northern Ireland (Emergency Provisions) Act 1991 which provides, inter alia, for the exclusion of confession evidence under section 11(2)(b) where that evidence has been obtained by violence or threat of violence, or under section 11(3):
“... in the case of any statement made by the accused and not obtained by so subjecting him as mentioned in subsection (2)(b) above, the court ... has a discretion [to exclude the statement] if it appears to the court that it is appropriate to do so in order to avoid unfairness to the accused or otherwise in the interests of justice.”


ITEMID: 001-5828
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KOLARIDES v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Cypriot national, born in 1940 and living in Nicosia. He is represented before the Court by Mr K. Adamides, Mr A. Demetriades and Mrs E. Nathanael, lawyers practising in Nicosia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
By a judgment of 30 March 1998 the Family Court of Nicosia pronounced the divorce between the applicant and his wife.
On 6 May 1998 the wife of the applicant applied to the Family Court for the applicant to disclose, within 15 days, in accordance with Sections 14A and 14B of Law 232/1991 regulating property relations between spouses (“the Law”), as amended by Law 25(1)/98, any assets in his possession on 22 May 1996.
On 18 June 1998 the applicant lodged an objection to this application. As a result, the Family Court submitted to the Supreme Court a question of law reserved (no.332) on whether Section 14A of the Law was compatible with the provisions of Articles 23 § 1 (right to property) and 30 §§ 2 and 3 (right to a fair trial) of the Constitution. In the meantime, as another question of law reserved (no. 330), directly related to question no. 332, was submitted to the Supreme Court in another case, the latter decided to join the two questions.
In its judgment of 11 May 2000, the Supreme Court found that Sections 14A and 14B of the Law were not contrary to these constitutional provisions. As regards Article 30 of the Constitution, the Supreme Court held that the obligation to disclose under Section 14A was imposed on both parties to the proceedings and established complete procedural equality between them. No party was disadvantaged vis-à-vis the other. Information concerning the assets of the parties constituted a precondition for the effectiveness of the substantive provisions of the Law. Section 14A aimed at establishing a factual situation, without which justice according to the provisions of the Law could not be done.
The proceedings before the family Court were still pending at the time of the introduction of the application before the Court.
The relevant provisions of the Constitution read as follows:
“Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right ...”
“No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited.
In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Judgment shall be reasoned and pronounced in public session, but the press and the public may be excluded from all or any part of the trial upon a decision of the court where it is in the interests of the security of the Republic or the constitutional order or public order or public safety or public morals, or where the interests of juveniles or the protection of the private life of the parties so require or, in special circumstances where, in the opinion of the court, publicity would prejudice the interests of justice.
Every person has the right
– to be informed of the reasons why he is required to appear before the court;
– to present his case before the court and to have the time necessary for its preparation;
– to adduce or cause to be adduced his evidence and to examine witnesses according to law;
– to have a lawyer of his own choice and to have free legal assistance where the interests of justice so require and as provided by law;
– to have free assistance of an interpreter if he cannot understand or speak the language used in court.”
Sections 14A and 14B of Law 232/1991 regulating property relations between spouses read as follows:
“14.A.-(1) For the purposes of the better implementation of section 14, the Court may on the application of any of the parties issue an order, by virtue of which the respondent will be obliged, within 15 days from the issue of such order, or within any other period that the Court may fix, to submit to the Court an affidavit, in which he will describe completely, clearly and in a precise manner the property in respect of which he had any direct or indirect interest on the date of the interruption of the cohabitation or on any other date that the Court may fix in the order.
(2) If the interest that the applicant had on the date fixed by the Court in property or part of it, ceased to belong to him on the date of the examination of the petition for divorce or any other date fixed by the Court, the respondent is obliged, on the application of any of the parties, to give complete, precise and convincing proof of the alienation or the disposal of the property or part of it by means of a supplementary affidavit, and if it is considered necessary the Court may order the respondent to give instructions to a banking institution or financing organisation, with notice to the Court, as regards the alienation, movement, transfer or restitution of the property or part of it, as the Court may decide.
14.-B(1) Any person who provides false, inaccurate or incomplete information in relation to a matter referred to in section 14 A is guilty of an offence and in case of conviction he is liable to imprisonment for a period not exceeding 2 years or to a fine not exceeding two thousand pounds and or to both penalties.
(2) Any person who refuses, omits or delays to comply with the order of the Court issued under section 14 A is guilty of an offence and, in case of conviction, is liable to be punished as provided in section 44 of the Courts of Justice Laws of 1960-1997 for contempt of court. In a case where this person is the petitioner for the divorce, the Court may in addition suspend further proceedings until this person complies with the Court’s order.”


ITEMID: 001-78375
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IVANOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1950 and lives in the city of Zhytomyr, Ukraine.
5. On 12 September 1995 the applicant had a quarrel with his neighbours, Mr and Ms L., which led to a fight. The applicant was arrested by the police and brought to the police station.
6. On 13 September 1995 the Zhytomyr District Court fined the applicant 150 000 karbovanets (1.5 UAH) for the administrative offence of swearing in a public place.
7. On 22 September 1995 the Zhytomyr District Police Department instituted criminal proceedings against the applicant upon the complaint of Mr and Ms L. for inflicting medium bodily harm on Mr L.
On 20 December 1995 the police investigator instituted criminal proceedings against the applicant for extremely malicious hooliganism (особо злостное хулиганство).
8. On 18 January 1996 the applicant was formally charged with the extremely malicious hooliganism and gave a written undertaking not to abscond.
9. On 7 February 1996 the investigation was completed and the applicant was given access to the case-file.
10. On 20 February 1996 the applicant finished consulting the case-file.
11. On 12 March 1996 the investigation was resumed. The proceedings against the applicant for extremely malicious hooliganism were discontinued. Instead, he was charged with inflicting medium bodily harm.
12. On 14 March 1996 the investigation was completed and the applicant was given access to the case-file. He finished consulting the case-file on the same day.
13. On 19 March 1996 the case was referred to the Zhytomyr District Court.
14. On 30 May 1996 the court ordered a forensic examination and adjourned the hearing.
15. On 16 July 1996 the court ordered an additional forensic examination and adjourned the hearing.
16. On 24 October 1996 the court sentenced the applicant to two years' imprisonment with one year's probation. The court confirmed the obligation not to abscond, i.e. not to leave his place of residence, as a restrictive measure.
17. On 26 November 1996 the Zhytomyr Regional Court upheld the decision of the first instance court.
18. On 6 June 1997 the Presidium of the Zhytomyr Regional Court quashed the decisions of 24 October and 26 November 1996 under the supervisory review procedure and remitted the case for an additional investigation.
19. On 23 June 1998 the General Prosecutor's Office (“the GPO”) closed the criminal case against the applicant and quashed the preventive measure imposed on him. On 26 August 1998 this decision was quashed and the case was reopened.
20. On 2 October 1998 the case was again closed and the preventive measure was quashed. On 29 October 1998 the decision of 2 October 1998 was quashed. The applicant maintained that in November 1998 he had requested a permission to visit his sick mother in another town in Ukraine, but had been refused. The case was then closed on 10 January 1999, being finally reopened on 13 January 1999. On 11 March 1999 the applicant once again gave his obligation not to leave his place of residence.
21. On 30 October 1999 the case was sent to the Zhytomyr District Court.
22. On 4 November 1999 the court found the case ready for examination and scheduled the hearing for 26 January 2000.
23. On 26 January 2000 the court heard the merits of the case and adjourned the hearing till 20 March 2000.
24. On 20 March 2000 the court postponed the hearing due to the failure of the applicant's lawyer to appear.
25. On 4 April 2000 the court heard the merits of the case and adjourned the hearing till 28 April 2000.
26. On 28 April 2000 the hearing was adjourned following the applicant's request.
27. On 1 June 2000 the court heard the merits of the case and adjourned the hearing till 19 June 2000.
28. On 5 July 2000 the court postponed the hearing till 25 September 2000 due to the failure of the applicant's lawyer to appear.
29. On 25 September 2000 the court postponed the hearing till 27 October 2000 due to the failure of the victim to appear.
30. On 2 October 2000 the applicant requested the court's permission to leave for Moscow till 25 October 2000. The court allowed this request.
31. On 16 November 2000 the court postponed the hearing till 1 December 2000, and on 1 December 2000 the court postponed the hearing till 19 March 2001 due to the failure of the applicant's lawyer to appear.
32. By a ruling of 19 March 2001, the court rejected the applicant's request to close the criminal case against him. The applicant appealed against this ruling, therefore the hearing on his case was adjourned.
33. On 18 April 2001 the Zhytomyr Regional Court rejected the applicant's appeal against the ruling of 19 March 2001 as it could not be appealed separately.
34. The hearing was resumed in the Zhytomyr District Court on 25 July 2001 and adjourned till 1 August 2001.
35. On 19 November 2001 the applicant requested the court not to hear the case in absence of his lawyer.
36. On 10 May 2002 the court heard the merits of the case and adjourned the hearing till 20 June 2002.
37. On 20 June 2002 the court rejected the applicant's request to replace the investigators in his case.
38. On 31 July 2002 the court rejected the applicant's request to replace the judge in his case.
39. On 10 June 2003 the court rejected the applicant's request to terminate the criminal proceedings against him because the administrative offence for which he was found guilty in 1995 was different from the offence for which he was charged under the pending criminal proceedings.
40. On 6 October 2003 the Zhytomyr District Court acquitted the applicant for a lack of evidence.
41. On 23 December 2003 the Zhytomyr Region Court of Appeal quashed the decision of 6 October 2003 and remitted the case for a fresh consideration.
42. On 2 February 2004 the Judge of the Supreme Court of Ukraine rejected the applicant's appeal in cassation against the decision of 23 December 2003 as that decision was not subject to appeal.
43. On 10 February 2004 and 4 March 2004 the hearing was adjourned due to the victim's failure to appear.
44. On 2 April 2004 the President of the Zhytomyr District Court allowed the applicant's request to replace the judge in his case. Judge B. was replaced by Judge Ye.
45. On 15 October 2004 the hearing was adjourned till 20 October 2004 due to the applicant's failure to appear.
46. On 20 October, 28 October and 17 November 2004 the hearing was adjourned due to the victim's failure to appear.
47. The court heard the merits of the case on 13 December, 18 December and 27 December 2004.
48. On 20 January 2005 the applicant challenged the judge in his case.
49. On 25 February 2005 the hearing was adjourned till 17 March 2005 due to the prosecutor's failure to appear.
50. On 17 March 2005 the court heard the merits of the case and adjourned the hearing till 7 April 2005.
51. On 7 April 2005 the applicant challenged the judge in his case.
52. On 28 April and 7 May 2005 the hearing was adjourned due to the prosecutor's failure to appear.
53. On 3 March 2006 the court convicted the applicant of inflicting medium bodily harm and sentenced him to one year's imprisonment. The court exempted the applicant from serving the sentence as the charges against him had become time-barred.
54. On 23 May 2006 the Zhytomir Regional Court of Appeal upheld the judgment with minor changes.
55. The criminal proceedings are still pending before the Supreme Court.
56. The text of Articles 148, 149 and 150 of the Code of Criminal Procedure of 1960, which are the general rules on preventive measures, is set out in Merit v. Ukraine (no. 66561/01, judgment of 30 March 2004).
57. According to Article 151 of the Code, an undertaking not to abscond consists of an obligation by a suspect or an accused not to leave his or her place of residence or temporary stay without the permission of an investigator. In the event of a breach of such a written undertaking, a stricter measure of restraint may be applied.
58. According to Article 48 of the Criminal Code at the material time (Article 49 of the Criminal Code in force as of 1 September 2001), the charges of medium gravity become time-barred after five years from the date of committal.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1