ITEMID: 001-57784
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF LÜDI v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Questions of procedure rejected;No violation of Art. 8;Violation of Art. 6-1+6-3-d;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 7. Mr Ludwig Lüdi, a Swiss national, resides at Röschenz in the Canton of Berne.
8. In 1983, while in Germany, he was charged with trafficking in drugs. On 30 November 1983 the 16th Criminal Chamber of the Stuttgart Regional Court ordered the proceedings to be discontinued as a result of various procedural problems, including the intervention of a German undercover agent (V-Mann).
On appeal by the public prosecutor’s office, the Federal Court (Bundesgerichtshof) set the order aside on 23 May 1984 and remitted the case to the Stuttgart Regional Court. That court adjourned the case sine die on the grounds that the applicant and his co-defendant, who had been at liberty since 2 September 1983, had returned to Switzerland.
9. On 15 March 1984 the German police informed the police of the Canton of Berne that the applicant had asked a fellow countryman whom he had met while in detention for 200,000 Swiss francs to finance the purchase of approximately 5 kg of cocaine in Switzerland.
In order to obtain fuller information on the drugs deal and seize the drugs in question, the investigating judge at the Laufen District Court (Amtsgericht) opened a preliminary investigation on 15 March 1984. With the agreement of the Indictments Chamber of the Court of Appeal (Obergericht) of the Canton of Berne and pursuant to Article 171b of the Berne Code of Criminal Procedure (see paragraph 26 below), he also ordered the applicant’s telephone conversations to be monitored.
On 20 June the Indictments Chamber authorised the telephone interception to be extended to 15 September 1984.
10. In addition, the Laufen police and the special drugs unit decided that a sworn officer of the Berne Cantonal Police should pass himself off as a potential purchaser of the cocaine, under the assumed name of Toni. They acted with the authorisation of cantonal police headquarters, and notified the investigating judge at the Laufen District Court of their plan.
11. According to the Government, Toni had attended a course on 12 and 13 December 1978 intended for cantonal officials with responsibility for the fight against drug trafficking, with the aim of drawing their attention to the limits to which their undercover activities were subject and the relevant provisions of the law. Shortly before acting in the present case, Toni was reminded at a meeting with his superior officers of the limits beyond which he was not to go.
12. The applicant met Toni on 19 and 21 March, 15 May and 5 and 14 June 1984, on the latter’s initiative on each occasion, as the applicant did not know his real identity, address or telephone number.
13. He was arrested on 1 August 1984 and charged with unlawful trafficking in drugs. The investigating judge at the Laufen District Court terminated the telephone interception on the same day. In a letter of 22 August 1984 he informed the applicant that he had ordered telephone interception and that it had lasted from 15 March to 2 June 1984.
According to Toni’s reports, Mr Lüdi had promised to sell him, as intermediary, 2 kg of cocaine worth 200,000 Swiss francs, and had borrowed 22,000 Swiss francs from a third person for the purchase of cocaine or other narcotics.
14. On 3 August 1984 the police searched the applicant’s home and found traces of cocaine and hashish on a number of objects.
15. On 5 September 1984 the investigating judge at the Laufen District Court ordered the applicant to be released on the ground that he had made "extensive admissions as to the essential parts of the investigation [and that] there [was] consequently no longer any risk of collusion or flight".
The Berne police, relying on the results of the preliminary investigation, filed a criminal complaint on 25 October 1984.
16. On 4 June 1985 the Laufen District Court found the applicant guilty of seven offences against the Federal Drugs Law and sentenced him to three years’ imprisonment. In order to preserve the anonymity of the undercover agent, the court declined to call him as a prosecution witness; it considered that the records of the telephone interception and the undercover agent’s reports showed clearly that, even without the agent’s intervention, Mr Lüdi had had the intention of acting as an intermediary in the supply of large quantities of narcotics.
17. Mr Lüdi appealed against his conviction for two of the seven offences, the attempted supply of cocaine to Toni and the attempted purchase of cocaine or another drug by means of the loan he had arranged.
18. On 24 October 1985 the Berne Court of Appeal (First Chamber) confirmed the judgment of 4 June 1985 (see paragraph 16 above). The Court of Appeal did not call the undercover agent either.
The court found that the evidence adduced before the trial court had in essence corroborated the content of Toni’s report, in particular with regard to the general course of events. This had clearly shown that the applicant - as had not been disputed by him - had made great efforts in order to supply Toni with 2 kg of cocaine, had contacted M. and then B., travelled to Ticino and Italy, and arranged meetings between Toni and a possible supplier. After initially minimising things, he had eventually decided to admit all these facts, which also followed partly from the interception of his telephone conversations and the statements of M. It had to be regarded as established that Mr Lüdi had been the first to speak to S. about purchasing cocaine; besides, S. had confirmed this, although he had toned down his original statements on this point to some extent.
The court then dealt with the applicant’s argument that section 23 subsection 2 of the Federal Drugs Law did not apply to Toni’s actions. The court said that the mere fact that the applicant had planned a significant deal in cocaine before his first contact with the undercover agent brought him within section 19 of that Law.
Finally, the detailed reports of the telephone interception showed very clearly that Mr Lüdi had persistently (beharrlich) and on his own initiative attempted to carry out a drugs deal, and that he had for this purpose intended to bring Toni in as the "banker", as he himself did not have the required funds.
19. Mr Lüdi then brought a public law appeal and an application for a declaration of nullity to the Federal Court (Bundesgericht).
20. He alleged in the former that there had been an interference with his right to respect for his private life, which had not been compatible with Article 8 (art. 8) of the Convention. He argued firstly that the monitoring of his telephone conversations had not been "in accordance with the law" and had not been justified under paragraph 2, as he had been suspected merely of having had the intention of committing an offence. Secondly, he complained of the intervention of an undercover agent, which he alleged had been intended to incite him to take part in drug trafficking. He further claimed that the telephone interception could not be used in evidence and that the mere reading of the agent’s reports, without the agent being called as a witness, had prejudiced the exercise of the rights of the defence, in breach of Article 6 (art. 6).
21. On 8 April 1986 the Federal Court dismissed the public law appeal, for the following reasons:
"...
(a) The public law appeal raises two objections to the ordering of the telephone surveillance. Firstly, it is argued that at the stage of ‘generally investigative police enquiries’ telephone interception was ordered for which there was no statutory provision at that stage; a preliminary investigation was started only for the sake of appearances. Secondly, the appellant complains that Bernese criminal procedure law permits of no preventive telephone surveillance and that the present case did not concern an investigation into an offence which had been committed, but the ascertainment of offences which were about to happen.
(b) Under Article 171b of the Berne Code of Criminal Procedure (StrV) an investigating judge can order surveillance of a suspect’s postal, telephone and telegraph communications ‘if an offence whose seriousness or particular features justify the interference or an offence committed by means of the telephone is being investigated’. It is not disputed that in the present case the telephone surveillance was ordered by the competent authority and the procedural rules in Article 171c StrV were complied with. That telephone surveillance in the initial stage of inquiries is excluded by cantonal law does not follow from the Code of Criminal Procedure, nor has it been demonstrated by the appellant. Depending on the circumstances, telephone interception is often appropriate precisely at the beginning of an investigation. From this point of view there is no indication whatever that the order complained of could have infringed the Constitution or that it was made under an arbitrary interpretation of cantonal law.
(c) There is no need to examine here whether under the wording of Article 171b StrV telephone surveillance and the other measures regulated thereby are to be strictly confined to investigations of offences already committed, excluding the possibility of preventive surveillance where there is a strong suspicion that offences are about to be committed. Under the sixth paragraph of section 19 subsection 1 of the Drugs Law (Betäubungsmittelgesetz) a person who takes steps in order to participate in some manner in dealing with drugs, transporting or storing them has already committed an offence. By Lüdi’s conduct as reported from Germany, namely his search for finance for a cocaine deal, he had already taken steps as defined above, so that, that being the case, the elements of an offence were already present, and the telephone surveillance ordered related not only to the discovery of planned crimes but also to the investigation of offences which had already been committed.
Moreover, it would not be untenable to interpret Article 171b StrV by analogy as a legal basis for preventive measures too, where the interference is justified by the seriousness or particular features of the offence which is anticipated. The telephone surveillance ordered in this case on a basis of serious suspicion of a crime was certainly not an abuse of the law.
3. (a) The use of so-called undercover agents is not expressly provided for in Swiss criminal procedure law, but the dominant opinion is that it is permissible in principle, in so far as the particular nature of the offences is capable of justifying the covert investigative acts and the undercover agent investigates the criminal activity in a predominantly passive manner without using his own influence to arouse willingness to commit the act and induce criminal conduct ... The federal legislature has in section 23 subsection 2 of the Drugs Law expressly taken into account the possibility of using an undercover agent in criminal investigations in the field of drug trafficking.
(b) In the ... public law appeal the permissibility of covert investigation in terms of the rule of law is not denied in general and as a matter of principle, but the view is taken that the use of an undercover agent represents a serious interference with the private life and personal freedom of the person concerned and such an interference is possible in a State subject to the rule of law only if founded on a sufficiently precise legal basis ...
Such a requirement of a legal basis for the use of undercover agents has not been discussed as yet in Swiss case-law and legal writing, nor expressly acknowledged as a restraint from the point of view of the rule of law. This would be a continuation and extension of the legislature’s reasons underlying the requirement for statutory regulation of telephone interception and similar investigative measures. While coercive measures in the course of criminal procedure (such as arrest, house searches, etc.) clearly interfere against the will of the person concerned with legally protected rights, and surveillance of telephone, postal and telegraph communications without the knowledge of the person concerned interferes in the interests of prosecuting crime with areas of confidentiality which are protected by law, the use of undercover agents is problematic at a somewhat different level: the personal freedom of the person concerned is not restricted, nor does he have to tolerate any other coercive measures, but he comes into contact with a partner who is unknown to him, but with whom he would not have dealings if he knew that he was working for criminal investigation. Where the undercover agent by means of his contacts merely ascertains criminal conduct which would have taken place in the same or similar fashion even without his intervention, the use of an undercover agent is no doubt unobjectionable. On the other hand, it would not be permissible if the undercover agent were to take the initiative, as it were, and provoke criminal activity which would otherwise not have come about at all; for the prosecuting authorities must not provoke criminality in order to be able to prosecute criminals whose readiness to commit crime, possibly present but latent, would otherwise not have become manifest. If the undercover agent fosters the criminality of the person concerned without it being possible to regard him directly as initiating or inciting, but nevertheless in such a way that it must be assumed that the criminal act would have been of lesser extent and seriousness without the ‘participation’ of the undercover agent, this is to be taken into account when passing sentence.
Covert investigation does not encroach on a basic right protected by the Federal Constitution (or the European Convention). The person concerned is free as regards his decisions and his behaviour towards the undercover agent; he is, however, deceived as to the identity of his negotiating partner and the latter’s connection with the police. A criminal is not protected by constitutional law against being observed in the course of his illegal conduct by a police officer who is not recognisable to him as such. Nor can any protection of a criminal against covert investigation be derived from the European Convention (Article 8) (art. 8). Whether the investigative methods of undercover agents should because of certain risks of abuse be statutorily regulated, and whether a statutory rule would be likely to counteract any abuses better than is currently done by case-law, is for the legislature to decide. According to current constitutional law and statute law, the use of an undercover agent is permissible within the bounds set by the general principles of the rule of law, without it requiring an express statutory basis. There are other investigative measures too - as for example the constant surveillance of a suspect - which may seriously affect private life and lead to findings which are unwelcome for the person concerned, without it ever having been thought necessary for there to be a statutory basis for such measures.
(c) If, therefore, as the law stands there is no requirement of a statutory basis for the use of undercover agents, it is not necessary to examine whether section 23 subsection 2 of the Drugs Law could be regarded as a sufficient statutory basis in the absence of a corresponding provision in cantonal procedural law. The wording of the subsection shows that it is not an enabling provision of criminal procedure, but a rule of substantive law on the question, which need not be discussed here, as to the circumstances under which acts by an undercover agent which are objectively the elements of an offence are not liable to punishment.
4. The activity of undercover agent ‘Toni’ did not go beyond the bounds, described above, of covert investigation acceptable in a State governed by the rule of law:
(a) The investigation of suspected drug offences is often, because of the nature of such offences, possible only by an undercover agent. It is precisely in this sphere that this method proves to be necessary and effective ... Once a report had been received of a definite suspicion that the appellant wished to carry out a substantial cocaine deal, it was not disproportionate to use a police officer to pose as a buyer. This did not involve an arbitrary interpretation of cantonal procedural law, nor was there a breach of a basic right or a human right protected by the European Convention.
(b) On the basis of the statements made by the various parties, and assessing the evidence in a reasonable and non-arbitrary fashion, the court below found that Lüdi first mentioned a cocaine deal to Schneider and then spontaneously offered ‘stuff’ to the interested party ‘Toni’ as well. Although subsequently it was always ‘Toni’ who contacted Lüdi to find out how things were progressing, it does not follow from this that the appellant did not commit an offence. Lüdi of his own accord got in touch with possible suppliers and also tried to find money for drug dealing elsewhere. As he had no telephone number for ‘Toni’, he necessarily had to wait for him to ring him. The essential point is that ‘Toni’ did not act as the instigator, but by posing as a buyer merely made it possible to investigate the appellant’s activities, which were aimed at a substantial deal in cocaine.
5. The appeal argues at great length that no account may be taken directly or indirectly of the statements of undercover agent ‘Toni’, for the further reason that he was not summoned and heard as a witness ... . If it is recognised that the use of undercover agents is justified in the public interest in fighting as effectively as possible against drug dealing, it follows that the identity and the investigative methods of such agents are not lightly to be given away in criminal proceedings; for their continued use would thereby effectively be made largely impossible. Preserving the secrecy of undercover agents does not in itself infringe principles of criminal procedure or constitutional rights. It is a matter for the court assessing the evidence to decide what weight can be attached in a particular case to the written statements of an undercover agent who has not appeared before the court, where there are legally relevant facts which are in dispute. The allegations that the appellant carried out preparatory actions which constituted criminal offences have been substantiated by the result of the telephone interception, the appellant’s own statements and those of the other persons involved. If the court below attributed to the undercover agent a somewhat less active role than that alleged by the appellant in his account of the facts, that was not arbitrary but was based on a tenable assessment of the evidence.
..."
(Annuaire suisse de droit international, 1987, pp. 229-230 and 232-234)
22. In contrast, in a judgment of the same day, the Cassation Division of the Federal Court granted the application for a declaration of nullity. The court said that the Laufen District Court, when convicting the applicant, had not taken sufficient account of the effect on his behaviour of the actions of the undercover agent, and the Berne Court of Appeal had not mentioned the outcome of the proceedings brought against the applicant in Germany or the fact that he had no criminal record.
The Federal Court remitted the case to the Berne Court of Appeal.
23. On 19 February 1987 the First Chamber of that court reduced the sentence to eighteen months’ imprisonment, suspended for three years. It also ordered that the out-patient medical treatment which Mr Lüdi had started while in detention should be continued. As grounds for its decision it cited its concern to take into account the intervention of Toni, and a psychiatric report stating that the applicant had been under the influence of cocaine at the time of the offences and hence had only limited responsibility.
24. The Drugs Law provides in sections 19 and 23 that:
"1. Any person who unlawfully cultivates alkaloid plants or hemp in order to obtain drugs,
any person who unlawfully manufactures, extracts, transforms or processes drugs,
any person who unlawfully stocks, dispatches, transports, imports or exports them or carries them in transit,
any person who unlawfully offers, distributes, sells, deals in, procures, prescribes, markets or transfers them,
any person who unlawfully possesses, holds, purchases or otherwise obtains them,
any person who takes steps to do so,
any person who finances unlawful traffic in drugs or serves as intermediary for such financing, and
any person who publicly encourages the consumption of drugs or publicly announces an opportunity for the acquisition or consumption of drugs,
shall be liable, if he acts intentionally, to imprisonment or a fine. In serious cases the penalty shall be imprisonment for not less than one year, which may be accompanied by a fine of up to one million francs.
2. A case is serious in particular if the person committing the offence
(a) knows or must be aware that the offence relates to a quantity of drugs which may endanger the health of a large number of people;
(b) acts as a member of a gang formed for the purpose of the unlawful dealing in drugs;
(c) obtains a large turnover or a substantial profit by dealing as a business.
..."
"1. If an official responsible for the enforcement of this law intentionally commits an offence under sections 19 to 22, the penalty shall be increased as appropriate.
2. An official who for investigative purposes in person or by the agency of another accepts an offer of drugs or personally or by the agency of another takes possession of drugs shall not be liable to punishment, even if he does not disclose his identity and status."
Statement of the Federal Council to the Federal Parliament of 9 May 1973 relating to an amendment to the Federal Drugs Law [and in particular to the introduction of an amended section 23]
"...
The amendment introduced at the end of the sentence is intended to give the court more latitude in determining the sentence where an official responsible for the enforcement of the Drugs Law deliberately contravenes that law.
The intention of the draft provisions, which follow on from the present section 23, is to facilitate police investigations in a field where they are particularly difficult. This is a question of allowing the police to enter the environment of dealers and sellers without exposing themselves to criticism for having incited the commission of offences or even having committed them themselves. Illegal drug trafficking has often been cited as a typical example of well-organised international gangs, some of which have been broken up in recent months. The police must be given adequate means for increasing the effectiveness of their campaign against these gangs of traffickers, as the Council of Europe asks us to do. Article 32 of the Criminal Code (official duty) is not sufficient to justify such actions. They must rest on a legal basis in each particular case (see Prof. Max Waiblinger, no. 1204, Fiches juridiques suisses, faits justificatifs).
..."
25. The Government stated that section 23 subsection 2 was regarded by cantonal courts and the Federal Court as permitting only a passive attitude on the part of undercover agents, who incurred criminal liability in the event of instigation or provocation by them. Moreover, the use of such agents could be ordered only in serious cases of organised crime relating to drug trafficking.
The Federal Court has held that the section in question derogates from provisions of cantonal law which may conflict therewith:
"... it is not necessary for section 23 subsection 2 of the Drugs Law to have as its purpose the regulation of a procedural point, which the appellant contests; it is sufficient that the cantonal legislation compromises the anonymity which the federal legislature - whose intentions are not in doubt here, if one considers the extracts from the parliament’s travaux préparatoires pertinently cited by the cantonal authorities - intended to guarantee to persons pursuing drug dealers.
The anonymity intended by the legislature has one purpose only: to allow the investigator to continue his work subsequently to the arrest of the person or persons whom he has exposed and to allow him to carry on several cases at once without the completion of one of them terminating his activities in the others. If once an inquiry has been completed the police officer has to disclose his identity and explain in detail the role he has played, it is self- evident that he will have to abandon any further work, as his cover will have been blown in drug-dealing circles. For this reason the observance of Articles 58 and 59 of the cantonal Code of Criminal Procedure is in conflict with section 23 subsection 2 of the Drugs Law ..." (Cassation Division, judgment of 5 June 1986).
26. The Berne Code of Criminal Procedure makes provision for various investigative measures:
"The investigating judge may order surveillance of a suspect’s postal, telephone and telegraphic communications and have his mail seized if an offence whose seriousness or peculiar features justify the interference or an offence committed by means of the telephone is being investigated."
"1. The investigating judge shall within twenty-four hours of his decision submit to the Indictments Chamber for approval a duplicate copy of his order together with the case-file and a short statement of reasons.
2. The order shall remain in force for three months at most; the investigating judge may extend it for a maximum of three months. The extension order is to be submitted to the Indictments Chamber for approval with the case-file and reasons ten days before the expiry of the period.
3. The investigating judge shall terminate the surveillance as soon as it becomes unnecessary or the period expires or if the order is withdrawn."
27. Articles 24 and 32 of the Swiss Criminal Code provide that:
"1. A person who intentionally persuades another person to commit an offence shall, if the offence is committed, be liable to the penalty to which the person who commits the offence is liable.
2. A person who attempts to persuade another person to commit a serious offence shall be liable to the penalty prescribed for the attempted commission of that offence."
"An act which is ordered by law or by an official or professional duty, or which is stated by law to be permitted or not liable to punishment, shall not be an offence."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-67332
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KARPOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Valentin Anatolyevich Karpov, is a Russian national who was born in 1954 and lives in Ramenskoye in the Moscow Region. He was represented before the Court by Mr E. I. Ezrokhi and Mrs Yu. E. Ezrokhi, lawyers practising in Lyubertsy in the Moscow Region. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 1999 the Moscow City Court found the applicant guilty of murder and affray and sentenced him to eleven years' imprisonment.
On 30 June 1999, upon the applicant's appeal, the Supreme Court of the Russian Federation acquitted him of affray and reclassified the charge of murder to one of manslaughter. The applicant was convicted of manslaughter and sentenced to two years' imprisonment. The court further applied an amnesty law and released the applicant from serving his sentence.
On an unspecified date the Deputy Prosecutor General lodged with the Presidium of the Supreme Court of the Russian Federation an application for supervisory review of the case, requesting it to quash the decisions of 25 February and 30 June 1999.
On 27 October 1999 the Presidium of the Supreme Court granted the application, quashed the decisions and remitted the case to the Moscow City Court for a fresh examination. The Presidium of the Supreme Court found, inter alia, that the courts in the previous proceedings had wrongly assessed the evidence, incorrectly applied the law and denied the procedural right of the victims to participate in the hearing before the Supreme Court on 30 June 1999. Neither the applicant nor his counsel was aware of the examination of the case by way of supervisory review on 27 October 1999.
On 1 March 2000 the Moscow City Court held a hearing in the presence of the applicant and his counsel. The court found the applicant guilty of murder and affray and sentenced him to eleven years' imprisonment.
On 31 May 2000, on the applicant's appeal, the Supreme Court of the Russian Federation reduced the sentence to eight years' imprisonment.
Under Article 374 of the Code of Criminal Procedure of 1960 in force at the material time applications for supervisory review of decisions of the Supreme Court of the Russian Federation were to be considered by the Presidium of the Supreme Court of the Russian Federation. No appeal was allowed against a decision of the Presidium of the Supreme Court of the Russian Federation taken on the supervisory review.
A review of the domestic law concerning supervisory review proceedings is set out in Nikitin v. Russia, no. 50178/99, 20 July 2004.


ITEMID: 001-4871
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KREMPOVSKIJ v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant was a Lithuanian citizen of Ukrainian national origin, born in Ukraine in 1946.
He died in Vilnius on 12 December 1997. By a letter of 3 February 1998 his daughter expressed the wish to maintain the case before the Court.
Before the declaration restoring Lithuania’s independence on 11 March 1990, the applicant worked as a lawyer in Vilnius. From April 1990 until August 1991 he was the Deputy Head of the so-called Lithuanian Soviet Prosecutor’s Office (hereinafter referred to as the “LSPO”), a division of the centralised Prosecutor’s Office of the USSR. Following the failure of a communist “coup d’état” in Moscow on 21 August 1991 and the immediate dismantling of the Soviet institutions, most of the LSPO’s activists fled Lithuania. The former Head of the LSPO, Mr P., moved to Russia. Yet the applicant stayed in Vilnius and acquired Lithuanian citizenship.
Until the Moscow coup of 21 August 1991 the LSPO had been located in a building in the centre of Vilnius. The prosecuting authority of the newly re-established state of Lithuania was also based in the same building. The applicant, as the Deputy Head of the LSPO, had been in charge of administration. The building had been protected by the interior forces of the USSR.
The applicant was suspected of preventing the prosecutors in the service of independent Lithuania from having access to their offices during the period from April 1990 to August 1991. On 9 September 1992 he was arrested, the arrest being confirmed by a prosecutor. On 21 September 1992 he was formally charged with sabotage and the obstruction of the operation of State institutions.
On 23 December 1992 the applicant was released from prison and remanded on bail.
On 7 September 1993 the pre-trial investigation was concluded and the criminal case was transmitted to the Supreme Court.
At the same time, the applicant submitted to the Supreme Court numerous applications and pleadings alleging various procedural irregularities committed by the prosecution while conducting the pre-trial investigation. In his pleadings of 16 December 1994 the applicant also asserted that the prosecutor’s arguments in support of his guilt were ill-founded, and that the case-file contained no valid evidence.
On 23 December 1994 the Supreme Court decided to order further investigation of the case. The above decision was subsequently quashed as, following amendments to domestic criminal procedure, on 16 March 1995 the Supreme Court transmitted the case for a completely new examination to the Vilnius Regional Court. During the trial, 29 witnesses were questioned, including a number of officers who worked for the prosecuting authority of independent Lithuania during 1990-1991.
By a letter of 21 February 1996 a prosecutor requested the President of the Vilnius Regional Court to invalidate the applicant’s passport for the purposes of foreign travel. The prosecutor stated, on the basis of certain intelligence received, that the applicant intended to move to Belarus in order to avoid trial. Apparently the prosecutor’s request was granted.
On 2 December 1996 a chamber of judges of the Vilnius Regional Court held a final hearing of the case. The applicant was represented by an officially appointed lawyer, but also made an intervention defending himself in person. The first instance court convicted him. It replaced however the initial charges of sabotage and obstruction, finding the applicant guilty of restraining the freedom of movement of third persons. The Regional Court did not impose any sentence because of an amnesty law.
Both the prosecution and the applicant appealed against the above judgment.
On 22 January 1997 a chamber of the Court of Appeal held a hearing on the appeal on points of law. The court decided to relinquish jurisdiction in favour of the full court.
On 26 June 1997 the Court of Appeal held a full appeal hearing. The applicant was represented by his own defence counsel, but also made an intervention himself. He requested inter alia that the court call and question the former Head of the LSPO, Mr P., who lived near Moscow and worked as a Russian military prosecutor.
On the same date the Court of Appeal amended the judgment of 2 December 1996, convicting the applicant of sabotage and the obstruction of the operation of State institutions. He was sentenced to 3 years’ imprisonment.
The applicant lodged a cassation appeal with the Supreme Court. He contested the fact-finding competence of both lower courts. He alleged inter alia that he had never received a copy of the first instance judgment in Russian, a language that he would understand, and that thus he had been unable to prepare a proper appeal. In his cassation appeal the applicant made no allegations as to the composition of the appellate court.
On 2 December 1997 a chamber of the Supreme Court heard the cassation appeal in the presence of the applicant and his defence counsel. At the hearing the applicant challenged the assessment of the witnesses’ evidence by the lower courts.
The Supreme Court found that the Court of Appeal had properly decided the case. It also dismissed as unsubstantiated the applicant’s allegations that the appellate court had breached any domestic procedural requirements to the applicant’s detriment. The Supreme Court noted that a copy of the first instance judgment in Russian was furnished to the applicant on 30 April 1997, whereas the term for submitting an appeal had expired on 16 December 1996. The Supreme Court found that this fact had constituted a breach of domestic criminal procedure. The cassation court also noted, however, that the above irregularity had been remedied by the appellate court which had granted the applicant an additional month to supplement his appeal. The case had then been examined by the Court of Appeal based on the applicant’s revised appeal.
On 12 December 1997 the applicant died of a heart disease.


ITEMID: 001-93575
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YANANER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1976 and lives in Bodrum. He was the manager of a hotel at the time of the events.
5. On an unspecified date, a number of persons complained to the police that the applicant, together with other persons, was extorting money and threatening them.
6. On 24 July 2004 the applicant, together with three other persons, was arrested and taken into custody by police officers from the organised crime unit of the Bodrum District Security Directorate. A certain amount of heroin was also found in the car driven by the applicant during arrest.
7. According to the rights of the suspected accused form (şüpheli sanık hakları formu) signed by the applicant, on the same day, at about 8 a.m., the latter was informed of his rights, including the right to legal assistance and to remain silent, both of which he waived.
8. On the same day, at 8.30 p.m., when interviewed by two police officers he denied the accusations against him.
9. In the application form the applicant complained, without any details, that he had been subjected to torture, during interrogation, by two police chiefs, named Mehmet and Soner.
10. On 28 April 2005 the applicant, at the Registry’s specific request, submitted a letter running to approximately eleven pages in which he set out in detail the various forms of illtreatment he had been allegedly subjected to at the hands of various police officers in custody. In particular, these treatments included a violent punch on his chest during arrest; being blindfolded, handcuffed, made to lie down on the floor face down and told to raise his legs and receiving kicks to his buttocks and a blow to his head when he lowered his legs after his arrival at the police station; having one officer pulling his right leg while at the same time another pressed down on his back during interrogation. During this time, his testicles were squeezed and he received kicks and pressure to his back. A few hours before he was to be brought before the prosecutor, the applicant was told that chief Soner was going to come and he was made to wait while sitting in an uncomfortable position for hours. This person punched the applicant’s face and his chin and kicked him on his knees. The applicant submitted that those responsible for his alleged ill-treatment were Soner, Mehmet, Bayram, Osman, Tolga and three other police officers.
11. On 25 July 2004 the applicant was examined by Dr Ü.E. at the State hospital who found no signs of injury on his person.
12. On the same day, the applicant was brought before the public prosecutor and a judge at the Bodrum Magistrates’ Court. The latter ordered his remand in detention.
25. On 16 September 2004 the Aydın Assize Court dismissed the applicant’s objection.
26. In the meantime the applicant unsuccessfully asked for disciplinary proceedings to be brought against police officers at Bodrum District Security Directorate.
27. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, ECHR 2004-IV (extracts)).
VIOLATED_ARTICLES: 3


ITEMID: 001-82364
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: M. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: 1. The applicant, Mr M., is a Tunisian national who was born in 1968 and currently lives in Stockholm. He is represented before the Court by Mr Bo Johansson, a lawyer practising in Stockholm.
2. The Swedish Government (“the Government”) are represented by their Agent, Mr Bengt Sjöberg, of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. According to the applicant, he entered Sweden on 14 August 2001. However, the Swedish authorities did not become aware of his existence until 12 August 2004, when the police happened to ask him for his personal documents. As he was residing illegally in the country, the police prepared for his immediate expulsion. The following day the applicant applied for asylum, a residence permit and a work permit.
5. The Migration Board (Migrationsverket) held an initial short interview with the applicant on 15 August 2004, and a more extensive one on 16 August 2004.
6. During the first interview the applicant stated that he grew up in the town of Gafsa, but moved to Tunis in 1991, after he had finished high school. His oldest brother lived in Algeria and was not allowed to return to Tunisia. The applicant was arrested by the police and sometimes subjected to torture.
7. During the second interview the applicant, represented by counsel, explained, among other things, that his eldest brother moved to Algeria in 1981 to look for work and he married an Algerian woman there. Since 1985 the Tunisian authorities suspected that the brother belonged to a terrorist organisation and constituted a danger vis-à-vis Tunisia. The last time the brother visited Tunisia was in 1985/86. Due to these suspicions, several times the applicant had been detained for a couple of days, during which time he was interrogated about his brother’s whereabouts, beaten and tortured. The first time this happened was in 1992. He could not specify how many times he had been interrogated. He lived in Gafsa until 1994. He lived in Tunis from 1994 until 1997/1998 and subsequently moved to Sfax where he lived until 1999. Thereafter, he moved to Gabes, but returned to Tunis around 2000 and lived there until he left the country. Every time he was in Gafsa to visit his mother he was taken to the police station for interrogation. This also happened in Tunis, the last time being at the end of 2000. He showed marks on his head and arm which allegedly were from the torture carried out in 1994/1995. He stated that those were the only physical injuries he had suffered.
8. Neither he, nor anyone else in his family had been politically active. His brother was not politically active in Tunisia and the applicant did not believe that his brother was active in Algeria either since “he was not that kind of person, who was politically active”. All the applicant’s problems were caused by the fact that his brother moved to Algeria and was suspected of Islamic terrorist activities.
9. The applicant had not been granted a passport, but had managed to arrange for one via contacts. Since he arrived in Sweden he had stayed with his sister, helping out with her gravely handicapped daughter, born in 2001.
10. In a letter of 18 August 2004 to the Migration Board, the applicant’s counsel stated that the minutes from the second interview were correctly recorded, but added that the applicant had also had a difficult social situation in his home country, including been subjected to social repression. Furthermore, the applicant suffered from serious psychological problems, such as nightmares, anxiety, depression and insomnia.
11. On 25 August 2004 the Migration Board refused to grant the applicant asylum. It found that the fact that the applicant had waited three years before he applied for asylum indicated that he did not consider himself to be in strong need of protection. Moreover, it found the veracity of the applicant’s story questionable, notably since he had not himself been politically active and had not been able to submit the name of the organisation to which the Tunisian authorities accused the applicant’s brother of belonging. There was no reason to believe that the applicant was of any particular interest to the Tunisian authorities.
12. The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden), before which he repeated that he had been persecuted because the Tunisian authorities considered that his brother was a terrorist and that consequently, the applicant had been arrested more than twenty times, during which he was tortured. His injuries were still visible although more than nine years had passed since the last time he had been ill-treated. The applicant also invoked bad health and a strong family attachment between him and his niece. He explained that the reason why he had not submitted his asylum application upon entry into Sweden was that he feared being returned to Tunisia immediately.
13. In a submission of 31 August 2004 the applicant’s counsel added that the applicant had been prohibited from leaving Tunisia and that according to new information from the applicant there was now a judgment against him for violating a travel ban. Thus, if he returned to Tunisia he would be arrested, tortured and risk being killed. Counsel thus requested an extension to submit the said judgment. Subsequently, at the beginning of October 2004, the applicant submitted fax copies of three documents in Arabic (appendix nos. I, II, and III) to the Aliens Appeals Board. One of them was allegedly the said judgment.
14. On 11 October 2004, at a court hearing regarding reconsideration of a detention order against the applicant, a translator was present, whom counsel asked about the three documents, notably whether one of them was a judgment concerning a travel ban. The translator replied in the negative, but stated that one document concerned a judgment imposing a four-year prison sentence on the applicant for membership of a forbidden organisation and another document was a summons to a court hearing.
15. In a letter of 22 October 2004 to the Aliens Appeals Board, counsel invoked the judgment as proof of the ill-treatment to which the applicant had been subjected and the risks he would face upon return to Tunisia.
16. The Aliens Appeals Board informed the applicant and his counsel that the documents, including the alleged judgement, would not be formally translated or checked for authenticity since they had been transmitted only as fax copies as opposed to originals. It further noted that the applicant had not provided a satisfactory explanation as to why and how he had been sentenced as alleged or why he had not previously mentioned or submitted the judgment. In reply, on 2 November 2004 counsel maintained that the applicant’s relatives had tried in vain to obtain an original of the judgment, according to which the applicant had been accused of being politically active in an illegal organisation called an-Nahdha. However, the court refused to release the judgment in the applicant’s absence and the reason why the judgment had not been mentioned before was that it had been passed in the applicant’s absence on 4 May 2004 after the court had asserted that the applicant was abroad.
17. On 2 November 2004, finding that none of the circumstances invoked by the applicant were strong enough to give him asylum status or to grant him a residence permit, the Aliens Appeals Board upheld the Migration Board’s decision. More specifically as to the alleged strong family attachment between the applicant and his niece, the Aliens Appeals Board pointed out that the applicant had never lived with his sister in Tunisia, before she was granted a permanent residence permit in Sweden in 1997, nor had he applied for asylum or a residence permit with reference to his family link when he arrived in Sweden.
18. On 1 December 2004 the applicant submitted a so-called new application for a residence permit to the Aliens Appeals Board, adding that he had been active in the forbidden Islamic organisation an-Nahdha and that the Appeals Board had not given sufficient weight to the judgment against him. He also referred to the human rights situation in Tunisia and emphasised that his attachment to his niece had become very strong, notably after his sister divorced her husband due to domestic violence.
19. On 15 December 2004, again the Aliens Appeals Board rejected the applicant’s application. As to the alleged judgment, referring to its previous finding, the Board gave it little weight as evidence.
20. On 2 March 2005, the applicant submitted a second so-called new application to the Aliens Appeals Board, enclosing a letter of 27 December 2004, repeated on 25 January 2005, by a Swedish organisation called the Friends of Freedom Association (Frihets Vänner Föreningen), and a fax copy of a letter of 20 February 2005 by the Nahdha Party of Tunisia in England. The latter read as follows:
To whom it may concern,
I, Rashid Ghannouchi, Chairman of Nahdha (Renaissance) Party of Tunisia confirm that Mr. M. (Tunisia) is a sympathiser of our party. He came under threat because of his thoughts and political activities.
Given the present situation in Tunisia, we consider Mr. M. to be a grave risk of arrest, imprisonment and torture if returned to Tunisia.
Therefore, I would be very grateful if you positively consider his application for political asylum.
21. By decision of 22 March 2005, the Aliens Appeals Board refused anew to grant the applicant a residence permit.
22. On 21 June 2005, immediately before the implementation of the deportation order, the applicant lodged the present application and requested that the Court applied Rule 39 of the Rules of Court. On the same day, following an indication given by the Court, the applicant’s deportation was stayed until further notice.
23. On 8 July 2005 the applicant submitted further information to the Court and enclosed a translation of the aforementioned appendix no. II, which stated as follows:
Ministry of Justice
The District Court in Tunis
Ref. no. 374
To the District Superintendent – the National Guard
Referring to Article 175 ff of the Penal Code, you are requested to communicate to
M.,
That he has been convicted in absentia by the District Court in Tunis by judgment of 2004-04-05 pursuant to Article 175-332, and sentenced to four years’ imprisonment for membership of an illegal party.
The Registrar (unreadable signature)
24. On 27 March 2006, the Migration Board examining the applicant’s case on its own initiative, in accordance with a temporary provision of the Aliens Act, found that the applicant could not be granted residence permits under the temporary wording of Chapter 2, section 5 b of the Aliens Act. Before it the applicant had submitted a summons for questioning of 30 July 2005, in Arabic.
25. On 30 March 2006 the applicant once again applied for a residence permit under the temporary provision of the Aliens Act. The application was rejected by the Migration Board on 22 August 2006.
26. Before the Court the applicant alleged, inter alia, that he was introduced to anNahdha through his older brother at the end of the 1980s, and that his brother had to flee to Algeria by the time the applicant got involved in the party. He worked for the party by distributing messages, mail and leaflets. He was regularly arrested for periods between three and fourteen days and ill-treated. At some point there was a nationwide warrant against him and in 1995 he was detained for one and a half months. In 1996 he moved to the country side around Tunis and had agricultural jobs. Thereafter, he was no longer politically active but he remained in contact with some of the Nahdha party members. At the end of the 1990s he contemplated leaving the country but did not do so until 2001. Before the Court, the applicant also submitted the original of the letter of 20 February 2005 by the Nahdha Party of Tunisia in England. It had been difficult to obtain the Tunisian documents. They were not acquired by the applicant but by his sister and brother-in-law living in Sweden, with the assistance of the Friends of Freedom Association, and with the help of a lawyer hired by the applicant’s mother. Thus, the documents were transmitted by fax. It was not possible to send the original by mail until later.
27. Providing various examples, the Government pointed out that most of the applicant’s statements before the Court were new to them and not consistent with the information submitted previously before the Swedish migration authorities.
28. Moreover, in February 2007, the Government requested the Economic and Commercial Section of the Swedish Embassy in Tunis to provide certain information regarding the documents submitted by the applicant and allegedly issued by Tunisian authorities. Via an attorney in Tunis, who submitted a report on 7 March 2007, the following was submitted among other things. Under Tunisian procedural law it was prohibited for any person (irrespective of his or her occupation or authority), who was not a party to the lawsuit or who had not intervened during the legal case (as an expert or a lawyer of one of the parties to the legal matter) to have access to the legal file. Hence, it was not possible to verify or disprove by this means, whether the invoked documents existed de facto. However, there were several irregularities in the documents invoked by the applicant. More importantly, as regards the three documents invoked by the applicant before the Aliens Appeals Board, it was established that none of them was a judgment. Instead appendix I, II, and III were respectively a summons to a court hearing, an order of service and a certificate of service of a judgment. The two latter documents contained references to a judgment against the applicant regarding membership of a forbidden organisation.
29. A new Aliens Act (SFS 2005:716), replacing the 1989 Aliens Act, entered into force on 31 March 2006. The Act established a new system for examining and determining applications for asylum and residence permits. While the Migration Board continued to carry out the initial examination, an appeal against the Board’s decision was determined by one of the three new migration courts. The Migration Court of Appeal was the court of final instance. It examined appeals against the decisions of the migration courts, provided leave to appeal was granted. Upon the entry into force of the new Act, the Aliens Appeals Board ceased to exist. The Migration Board acted as the alien’s opposing party in proceedings before the courts.
30. The provisions mainly applied in the present case were to be found in the 1989 Aliens Act, now repealed. In accordance with the Act, an alien staying in Sweden for more than three months had to, as a rule, have a residence permit (chapter 1, section 4). A residence permit could be issued, inter alia, to an alien who, for humanitarian reasons, was to be allowed to settle in Sweden (chapter 2, section 4). Serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit.
31. An alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself of the protection of that country. This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals (chapter 3, section 2). An “alien otherwise in need of protection” denoted, inter alia, a person who had left the country of his nationality because he had a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 3, section 3, subsection 1). By making that a separate ground for granting a residence permit, the legislature had highlighted the importance of such considerations. The correspondence between national legislation and Article 3 of the Convention had been emphasised as a result.
32. In enforcing a decision on refusal of entry or expulsion, the risk of torture and other inhuman or degrading treatment or punishment was taken into account. In accordance with a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 8, section 1). In addition, he could not, in principle, be sent to a country where he risked persecution (chapter 8, section 2).
33. Until 15 November 2005 an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so-called “new application” with the Aliens Appeals Board based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion. A residence permit could then be granted if the alien was entitled to a residence permit under chapter 3, section 4, of the Act or if it would be contrary to the requirements of humanity to enforce the refusal-of-entry or expulsion decision (chapter 2, section 5 b, in its wording before 15 November 2005).
34. Amendments to chapter 2, section 5 b, of the 1989 Aliens Act entered into force on 15 November 2005, whereby a new legal remedy of a temporary nature was introduced. The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter 2, section 5 b, in its previous wording. Furthermore, the amendments to the 1989 Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined.
C. Relevant background material
35. The US Department of State, Tunisia, Country Reports on Human Rights Practises, 2006, stated, inter alia, of relevance to the present case:
“... The government continued to commit serious human rights abuses. There were significant limitations on citizens’ right to change their government. Members of the security forces tortured and physically abused prisoners and detainees. Security forces arbitrarily arrested and detained individuals. Authorities did not charge any police or security force official with abuse during the year. Lengthy pre-trial and incommunicado detention remained a serious problem. The government infringed on citizens’ privacy rights, continued to impose severe restrictions on freedom of speech and of the press, and restricted freedom of assembly and association. The government remained intolerant of public criticism and used intimidation, criminal investigations, the court system, arbitrary arrests, residential restrictions, and travel controls (including denial of passports), to discourage criticism by human rights and opposition activists. Corruption was a problem. ...
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices; however, according to human rights organizations, security forces tortured detainees to elicit confessions and discourage resistance. The forms of torture and other abuse included: sleep deprivation; electric shock; submersion of the head in water; beatings with hands, sticks, and police batons; suspension, sometimes manacled, from cell doors and rods resulting in loss of consciousness; and cigarette burns. According to Amnesty International (AI), police and prison officials used sexual assault and threats of sexual assault against the wives of Islamist prisoners to extract information, intimidate, and punish.
Charges of torture in specific cases were difficult to prove. Authorities often allegedly denied victims of torture access to medical care until evidence of abuse disappeared. The government maintained that it investigated all complaints of torture and mistreatment filed with the prosecutor’s office and noted that alleged victims sometimes accused police of torture without filing a complaint, which is a prerequisite for an investigation.
According to defense attorneys and local and international human rights groups, police routinely refused to register complaints of torture. In addition, judges dismissed complaints without investigation and accepted as evidence confessions allegedly extracted through torture. The government has the ability to open an administrative investigation of allegations of torture or mistreatment of prisoners without a formal complaint; however, in those cases the results have not been made public or available to the lawyers of affected prisoners.
Consistent with an effort to extract information or coerce confessions, reports of torture were more frequently associated with the initial phases of interrogation/investigation and pre-trial detention centers more than prisons. Human rights activists, citing prisoner accounts, identified facilities at the Ministry of Interior as the most common location for torture. Political prisoners, Islamists, and persons detained on terrorism-related charges allegedly received harsher treatment than other prisoners and detainees. ...
Prison and Detention Center Conditions
Prison conditions ranged from spartan to poor and generally did not meet international standards. Although overcrowding and limited medical care posed a significant threat to prisoners’ health, new prison facilities at Mornaguia and greater access to healthcare improved the situation.
According to human rights organizations, prison conditions in the country continued to fall short of minimum adequate standards. Hygiene was extremely poor, and prisoners rarely had access to showers and washing facilities. Sources reported that 40 to 50 prisoners were typically confined to a single 194 square foot cell, and up to 140 prisoners shared a 323 square foot cell. Most prisoners were forced to share beds or sleep on the floor. Current and former prisoners reported that inmates were forced to share a single water and toilet facility with more than 100 cellmates, creating serious sanitation problems. Contagious diseases, particularly scabies, were widespread, and prisoners did not have access to adequate medical care. Additional discriminatory and arbitrary measures such as restrictions on family visits worsened the conditions of detention, particularly when prisoners sought redress for grievances about treatment and conditions.
On September 9, the government closed the "9 Avril" prison in Tunis and moved prisoners to a new facility at Mornaguia, a suburb of Tunis. The capacity of the new prison was reportedly 5,000 prisoners and designed to remedy serious problems of overcrowding in the 9 Avril prison. Prisoners had previously complained of very poor conditions in 9 Avril, including overcrowding, sanitation problems, and limited access to medical care.
A 2004 LTDH report on the country’s prisons entitled "The Walls of Silence" estimated that there were approximately 26,000 prisoners in 29 prisons and seven juvenile detention centers. The report described a number of abuses, alleging that torture and humiliating treatment of prisoners were widespread.
In an April 2005 report, Human Rights Watch (HRW) described the government practice of holding political prisoners in prolonged solitary confinement. During a press conference held in Tunis in April 2005, HRW announced that the government promised not to place prisoners in solitary confinement for more than 10 days, the maximum time allowed for punishment according to the law. Shortly thereafter, the government confirmed that it had eliminated long-term solitary confinement. However, HRW reported that the government continued to keep some political prisoners, most of whom were outlawed Islamist party An-Nahdha leaders, in small-group isolation.
According to prisoner and detainee testimony, prison conditions for women were generally better than those for men. Conditions for detainees and convicts were reportedly the same.
International and local NGOs reported that political prisoners regularly were moved among jails throughout the country, thereby making it more difficult for their families to deliver food to them and to discourage their supporters or the press from inquiring about them (see section 1.b.). The CNLT reported that other inmates were instructed to stay away from political prisoners and were punished severely for making contact with them.
In April 2005 the government reportedly approved access for HRW to make prison visits. Following this verbal agreement, however, HRW submitted a formal request for prison access, but despite multiple communications from HRW, by year’s end the government had not responded to HRW’s request. In June 2005 the ICRC began conducting prison and detention center visits, following more than a year of negotiations with the government. The International Committee of the Red Cross (ICRC) reported that prison authorities had respected their mission and allowed them to conduct visits without obstacle. According to ICRC the government began to put measures in place to improve conditions, including improved hygienic conditions and access to medical care. In February the ICRC submitted its first intermediary report to the government. The government did not permit media to inspect or monitor prison conditions.
...
Amnesty
Judges and the government exercised their authority to release prisoners or suspend their sentences, often on conditional parole (see section 1.e.).
On February 26, President Ben Ali released 1,298 prisoners from prison and granted "conditional freedom" to 359 others. Among those released were 87 members of the banned Islamist party An-Nahdha, including Hamadi Jebali, the former editor of An-Nahdha’s now defunct newspaper al-Fajr, as well as other Islamists. Also among those released were six detainees, known as the Zarzis group, who had been arrested in 2003 for allegedly preparing to commit terrorist attacks. International and domestic human rights NGOs, who have long called for the release of political prisoners, had been particularly vocal about Jebali and the Zarzis group. After release Jebali and members of the Zarzis group complained of subsequent government harassment and excessive restrictions on personal movement due to their administrative control status (see section 2.d.).
On November 4, President Ben Ali released an unannounced number of prisoners in advance of the November 7 national holiday commemorating the President’s accession to power in 1987. An-Nahdha later reported on its Web site that 55 of its former members that had been imprisoned in the early 1990s were among those released. Several of those released had been sentenced to life in prison. ...
Political Prisoners and Detainees
The government denied that it held any political prisoners, and there was no definitive information regarding the number, if any, of such prisoners. Human rights organizations alleged that the government had arrested and imprisoned more than 500 persons since 2005 on charges related to a 2003 antiterrorism law, without sufficient evidence that they had committed or planned to commit terrorist acts. Human rights activists and lawyers alleged that many of these detainees were tortured in Ministry of Interior facilities and were forced to sign confessions.
The International Association for the Support of Political Prisoners (AISPP) claimed that approximately 150 political prisoners remained from the caseload of Islamists arrested in the late 1980s and early 1990s. Very few of the prisoners were convicted for acts of violence. Most of those who were identified by international human rights groups as political prisoners or prisoners of conscience were arrested for violating laws that prohibit membership in illegal organizations and spreading false information aimed at undermining public order. Many were arrested for disseminating information produced by organizations such as An-Nahdha. Former political prisoners stated their identity papers were marked in a way that resulted in their receiving harsher treatment. ...”
36. A report of 2005 by Human Rights Watch, on Tunisia, stated as to “Background on Political Prisoners in Tunisia”:
“Government officials have stated repeatedly over the years, and in response to the release of Human Rights Watch’s report, Tunisia: Long-Term Solitary Confinement of Political Prisoners, that the country holds no political prisoners or “prisoners of opinion,” only criminals tried and convicted for violating Tunisian law. Human Rights Watch disputes this characterization on two basic grounds: first, that very few of the individuals in question were convicted of involvement in acts of violence; and, second, that they were convicted in trials where their rights to a fair hearing were violated massively.
The vast majority of inmates who are commonly labeled as political prisoners were convicted for alleged connections to the opposition Nahdha party. An-Nahdha was established in 1988 as the successor to Tunisia’s Islamic Tendency Movement (Mouvement de la Tendance Islamique), which was founded in 1981 but never obtained legal recognition. An-Nahdha also was denied legal recognition, although the government of President Ben Ali tolerated it until 1991, despite a law prohibiting political parties based on religion. In the 1989 legislative elections, an-Nahdha established itself as the leading opposition movement when its members, prevented by authorities from running on a party ticket, ran as independents and captured fourteen percent of the vote.
The years 1990 and 1991 were marked by scattered violence linked to Islamists, and the start of an arrest campaign against Nahdha members. Party supporters were involved in numerous demonstrations on university campuses that turned violent. In 1991, party supporters were implicated in a fatal arson attack on a branch office of the ruling party in Tunis, an incident that authorities presented as proof of the party’s violent intentions. The Nahdha leadership denied authorizing the operation, although they termed it an understandable response to state repression. Three men were sentenced to death for their role in the attack and executed.
After more than a year of arrests among the Nahdha ranks, the government announced in September 1991 the discovery of a plot by the party to assassinate the president by firing a Stinger missile at his plane and overthrow the government. They charged 279 Nahdha leaders and backers, many of whom had already been in jail for months, of plotting the coup. At least 8,000 suspected members of an-Nahdha were arrested since the round-ups began in September 1990, Amnesty International reported in March 1992. Torture of these suspects during interrogation was pervasive, according to both Amnesty International and the Tunisian League for Human Rights.
In the summer of 1992, the 279 alleged coup-plotters were judged in mass trials before two military courts in Tunis. The defendants retracted their confessions, saying they had been tortured. Two hundred sixty-five were convicted and fourteen acquitted in proceedings that human rights monitors denounced as unfair. Forty-six of the defendants received life terms, although many of these were later commuted to thirty years in prison. The verdicts were not subject to appeal and were all confirmed by the Court of Cassation. These defendants comprise between sixty and seventy of the estimated 500 political prisoners being held today in Tunisia.
The government claimed then, and continues to claim, that an-Nahdha is an extremist group, willing to use violence to install a repressive theocracy. An-Nahdha’s leadership-in-exile says it routinely condemns violence and is committed to using only democratic and non-violent means to achieving a democratic and tolerant Islamic state. It categorically denies the existence of the coup plot for which its leaders were convicted in 1992.
Since 1991, Tunisia has been largely free of political violence. The only fatal attack attributed to Islamists was the April 2002 truck bomb that targeted a synagogue in Djerba, killing twenty-one. The suicide bomber was Tunisian. Al-Qaida claimed responsibility for the attack; the Nahdha party, along with other Tunisian political parties, condemned it; and no evidence has been disclosed linking the attack to an-Nahdha.
Nahdha leaders say the absence of political violence in Tunisia reflects their movement’s commitment to non-violence despite the harsh repression it has suffered. Tunisian authorities credit their own vigilance for the years of quiet. In the years since they imprisoned or drove into exile nearly the entire Nahdha leadership, authorities have jailed hundreds of suspected members of the party and of other lesser-known Islamist groups. Their trials generally did not meet international norms for a fair trial. The charges often related not to specific acts of violence but rather to activities such as membership in an “illegal” organization, or collecting funds, attending meetings, or performing unspecified activities on behalf of an “illegal” organization. Others were convicted of graver charges, such as participation in a “criminal gang...established to prepare or carry out attacks on persons or property.” Still others, notably those who had returned after living abroad, were tried in military courts, even though they were civilians, as permitted by the code of military justice, for the offense of serving "a terrorist organization that operates abroad" (Article 123). Convictions by military courts are not subject to appeal.”
37. In their report of 2006, published on 2007, the Human Rights Watch stated, inter alia, the following as to Tunisia:
“The government uses the threat of terrorism and religious extremism as a pretext to crack down on peaceful dissent. There are continuous and credible reports of torture and ill-treatment being used to obtain statements from suspects in custody. Sentenced prisoners also face deliberate ill-treatment.
In March [2006] President Ben Ali pardoned or conditionally released some 1,650 prisoners, including 70 members of the banned Islamist party an-Nahdha. In November the president pardoned or conditionally released about 50 more political prisoners, most of them an-Nahdha members. Some were party leaders who had been imprisoned since their mass trial in 1992 on dubious charges of plotting to topple the state. However, the number of political prisoners remained above 350, as authorities arrested scores of young men in sweeps around the country and charged them under the 2003 anti-terror law. Authorities made life difficult for released political prisoners, monitoring them closely, denying them passports and most jobs, and threatening to re-arrest some who spoke out on human rights or politics.”
38. The annual report for 2007 by Amnesty International on Tunisia stated, inter alia:
“Freedom of expression and association remained severely restricted. At least 12 people were sentenced to lengthy prison terms following unfair trials on terrorism-related charges, while around 50 others were still on trial at the end of the year. Torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials in previous years, including prisoners of conscience, remained in prison. Many had been held for more than a decade and were reported to be in poor health. ...
Some 135 political prisoners were released conditionally, 81 of them in February [2006] and the rest in November, following presidential amnesties. Most had been imprisoned for over 14 years because of their membership of the banned Islamist organization, Ennahda (Renaissance), after unfair trials before the Bouchoucha and Bab Saadoun military courts in 1992. Approximately 100 other members of Ennahda remained imprisoned, some reportedly in poor health as a result of harsh prison conditions and torture in pre-trial detention many years before. Some were in urgent need of medical treatment. ...”


ITEMID: 001-110785
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF MEREUŢĂ v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Mr Gabriel Mereuţă, is a Romanian national who was born in 1966 and lives in Piatra Neamţ. The Romanian Government (“the Government”) are represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant and D.O. have a child who was born on 26 August 2003. In April 2006, the couple split up and the applicant returned to live with his parents. At that time the child was cared for by the paternal grandparents. Soon after the separation, D.O. married M.V.B. and then changed her workplace to Bicaz, some twenty kilometres away from their former residence.
4. Relations between the applicant and D.O. deteriorated significantly after their separation. They engaged in extensive litigation concerning the division of property they had acquired during their relationship.
In addition, both parents filed for custody of the child. On 1 August 2006 the applicant asked for temporary custody pending the outcome of the main proceedings. On 24 August 2006 the Piatra Neamţ District Court granted him that right. A similar request lodged by the mother was dismissed by the same court on 22 September 2006.
5. From 15 September 2006 the applicant enrolled the child at School no. 6, at kindergarten level, where he remained until 7 December 2007 when his mother enrolled him at a kindergarten in Bicaz, closer to her work place and that of her husband. At that time D.O. was a judge at Bicaz District Court and subsequently a prosecutor in the Prosecutor’s Office attached to that district court. Her new husband was a prosecutor in the same office.
6. On 15 January 2007 the Piatra Neamţ District Court examined the merits of the requests for custody lodged by the two parents and found in favour of the mother. It granted visiting rights to the applicant. The court noted that most of the mutual allegations of lack of interest in the child and unfitness to take care of him remained unsubstantiated, the only proven fact being the extreme animosity between the parents.
7. The applicant appealed and on 2 October 2007 the Neamţ County Court upheld the custodial decision and set a visiting schedule for the applicant, who was entitled to take the child to his home as follows: every first and third weekend of the month, from 12 p.m. on Friday to 8 a.m. on Monday; the first week of every school holiday; and one month during the summer holidays. The child was to be picked up by the applicant from “Kindergarten no. 6”.
8. The applicant appealed on points of law, reiterating his request for custody; he agreed to the pick-up point set by the court as “Kindergarten no. 6”. In a final decision of 19 March 2008 the Bacău Court of Appeal took note that the applicant had retracted his appeal.
9. Between December 2007 and July 2009, in accordance with the visiting schedule, the applicant went to the kindergarten where his child used to be enrolled allegedly “at least forty-five times”, but the mother never showed up.
10. In February 2008 he initiated enforcement proceedings, without success; the bailiff compiled several reports (dated 8 February, 22 February, 7 March, 4 April, 6 June, 4 July, 5 September, 19 September, 10 October, and 21 November 2008) confirming the mother’s failure to comply with the provisions of the county court decision.
11. Starting from 25 December 2007, several criminal complaints (allegedly twenty-five) were lodged by the applicant against D.O for noncompliance with the provisions of the final enforceable decision. The Prosecutor’s Office attached to the Bacău Court of Appeal joined the examination of the various complaints and on 9 June 2008 decided not to prosecute on the ground that the alleged crimes had not occurred; the prosecutor also noted that the applicant had had numerous opportunities to see the child, but he had failed to keep the appointments and preferred instead to lodge various complaints against the mother.
The prosecutor’s decision was communicated to the applicant on the same day.
12. The applicant objected to the prosecutor’s decision, but on 16 December 2008 the Galaţi Court of Appeal upheld it. The court noted that the applicant had not respected the pick-up point set by the courts: he had gone with the bailiff to the child’s former kindergarten, School no. 6, whereas the mother had gone with the child to Kindergarten no. 6, which was located at a different address, as ordered by the final court decision. It also considered that the applicant’s intention was to find fault with the mother and pointed out, based on the evidence adduced before it, that the applicant had only visited the child in his new kindergarten, in Bicaz, once, accompanied by the bailiff, and on that occasion he had tried to take the child with him by force, causing a scene which had traumatised the child.
13. In a final decision of 27 February 2009 the High Court of Cassation and Justice upheld the prosecutor’s decision.
14. On 13 October 2009 the applicant filed for the clarification of the county court decision of 2 October 2007. On 10 November 2009 the Neamţ County Court sitting in camera granted his request and acknowledged that “Kindergarten no. 6” was to be understood to be “the kindergarten belonging to School no. 6”. The parties were not summoned to the proceedings.
15. Several other criminal complaints lodged by the applicant against D.O. were dismissed by the prosecutor on 9 June 2009, 30 April 2010 and 14 June 2010 for the same reasons as those provided in the decision of 9 June 2008.
16. The relevant domestic legal provisions are set out in the Court’s judgments in Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the local public authorities in respect of social assistance and child protection, as well as the relevant provisions of Law no. 272/2004 on Child Protection are described in the judgment in Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).


ITEMID: 001-58021
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: C. Russo;John Freeland
TEXT: 7. Mr Laskey, Mr Jaggard and Mr Brown, all British citizens, were born in 1943, 1947 and 1935 respectively. Mr Laskey died on 14 May 1996.
8. In 1987, in the course of routine investigations into other matters, the police came into possession of a number of video films which were made during sado-masochistic encounters involving the applicants and as many as forty-four other homosexual men. As a result the applicants, with several other men, were charged with a series of offences, including assault and wounding, relating to sado-masochistic activities that had taken place over a ten-year period. One of the charges involved a defendant who was not yet 21 years old - the age of consent to male homosexual practices at the time. Although the instances of assault were very numerous, the prosecution limited the counts to a small number of exemplary charges.
The acts consisted in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant’s bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o’-nine tails. There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring.
These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification. The infliction of pain was subject to certain rules including the provision of a code word to be used by any "victim" to stop an "assault", and did not lead to any instances of infection, permanent injury or the need for medical attention.
9. The activities took place at a number of locations, including rooms equipped as torture chambers. Video cameras were used to record events and the tapes copied and distributed amongst members of the group. The prosecution was largely based on the contents of those videotapes. There was no suggestion that the tapes had been sold or used other than by members of the group.
10. The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the "victims" as an answer to the prosecution case.
11. On 19 December 1990, the defendants were convicted and sentenced to terms of imprisonment. On passing sentence, the trial judge commented: "... the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them. The homosexuality of the defendants is only the background against which the case must be viewed."
Mr Laskey was sentenced to imprisonment for four years and six months. This included a sentence of four years’ imprisonment for aiding and abetting keeping a disorderly house (see paragraph 31 below) and a consecutive term of six months’ imprisonment for possession of an indecent photograph of a child. Under section 47 of the Offences against the Person Act 1861 ("the 1861 Act" - see paragraph 27 below), Mr Laskey also received concurrent sentences of twelve months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm.
12. Mr Jaggard was sentenced to imprisonment for three years. He received two years’ imprisonment for aiding and abetting unlawful wounding - contrary to section 20 of the 1861 Act (see paragraph 25 below) -, and a further twelve months’ imprisonment for assault occasioning actual bodily harm, aiding and abetting the same offence, and unlawful wounding.
13. Mr Brown was sentenced to imprisonment for two years and nine months. He received twelve months’ imprisonment for aiding and abetting assault occasioning actual bodily harm, a further nine months’ imprisonment for assault occasioning actual bodily harm, and a further twelve months’ imprisonment for further assaults occasioning actual bodily harm.
14. The applicants appealed against conviction and sentence.
15. On 19 February 1992, the Court of Appeal, Criminal Division, dismissed the appeals against conviction. Since, however, the court found that the applicants did not appreciate that their actions in inflicting injuries were criminal, reduced sentences were imposed.
16. Mr Laskey’s sentence was thus reduced to eighteen months’ imprisonment as regards the charge of aiding and abetting keeping a disorderly house. This sentence was to run concurrently with another three months’ sentence in respect of the various counts of assault and consecutively with six months’ imprisonment for the possession of an indecent photograph of a child, totalling two years’ imprisonment.
17. Mr Jaggard’s and Mr Brown’s sentences were reduced to six months’ and three months’ imprisonment respectively.
18. The applicants appealed to the House of Lords on the following certified point of law of public importance:
"Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the 1861 Act?"
19. On 11 March 1993, the appeal, known as the case of R. v. Brown ([1993] 2 All England Law Reports 75), was dismissed by a majority of the House of Lords, two of the five law lords dissenting.
20. Lord Templeman, in the majority, held after reviewing the case-law that:
"... the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the Act of 1861. They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters ...
Counsel for the appellants argued that consent should provide a defence ... because it was said every person has a right to deal with his own body as he chooses. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted harm on willing victims ...
In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty ...
Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised."
21. Lord Jauncey of Tullichettle found that:
"In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence ... unless the circumstances fall within one of the well known exceptions such as organised sporting contests or games, parental chastisement or reasonable surgery ... the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.
... Notwithstanding the views which I have come to, I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest.
Considerable emphasis was placed by the appellants on the well-ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention. There was, it was said, no question of proselytising by the appellants. This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice:
‘They [Laskey and Cadman] recruited new participants; they jointly organised proceedings at the house where much of this activity took place; where much of the pain inflicting equipment was stored.
Cadman was a voyeur rather than a sado-masochist, but both he and Laskey through their operations at the Horwich premises were responsible in part for the corruption of a youth "K" who is now it seems settled into a normal heterosexual relationship.’
Be that as it may, in considering the public interest it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sado-masochism in England and Wales. This House must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claiming to be. Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV-positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. Your Lordships have no information as to whether such situations have occurred in relation to other sadomasochistic practitioners. It was no doubt these dangers which caused Lady Mallalieu to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity. In my view such a restriction is quite unjustified. When considering the public interest potential for harm is just as relevant as actual harm. As Mathew J. said in Coney 8 Queen’s Bench 534, 547:
‘There is however abundant authority for saying that no consent can render that innocent which is in fact dangerous.’
Furthermore, the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships."
22. Lord Mustill and Lord Slynn of Hadley dissented. The first considered that the case should not be treated as falling within the criminal law of violence but rather within the criminal law of private sexual relations. He gave weight to the arguments of the appellants concerning Article 8 of the Convention (art. 8), finding that the decisions of the European authorities clearly favoured the right of the appellants to conduct their private life undisturbed by the criminal law. He considered after an examination of the relevant case-law that it was appropriate for the House of Lords to tackle afresh the question whether public interest required penalising the infliction of this degree of harm in private on a consenting recipient, where the purpose was not profit but gratification of sexual desire. He found no convincing argument on grounds of health (alleged risk of infections or spread of AIDS), the alleged risk of the activities getting out of hand or any possible risk of corruption of youth which might require the offences under the 1861 Act to be interpreted as applying to this conduct.
23. Lord Slynn of Hadley found that as the law stood adults were able to consent to acts done in private which did not result in serious bodily harm. He agreed that it was in the end a matter of policy in an area where social and moral factors were extremely important and where attitudes could change. It was however for the legislature to decide whether such conduct should be brought within the criminal law and not for the courts in the interests of "paternalism" to introduce into existing statutory crimes relating to offences against the person concepts which did not properly fit there.
24. The proceedings were given widespread press coverage. All the applicants lost their jobs and Mr Jaggard required extensive psychiatric treatment.
25. Section 20 of the Offences against the Person Act 1861 ("the 1861 Act") provides:
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, ... shall be liable ... to [imprisonment] ... for not more than five years."
26. According to the case-law, to constitute a wound for the purposes of the section, the whole skin must be broken, not merely the outer layer or epidermis.
27. By section 47 of the 1861 Act:
"Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for not more than five years."
Actual bodily harm is defined as "any hurt or injury calculated to interfere with health or comfort" (Liksey J, in R. v. Miller [1954] 2 Queen’s Bench Reports 282, at 292).
28. In the case of R. v. Donovan ([1934] 2 King’s Bench Reports, at 498), the accused had beaten with a cane a girl for the purposes of sexual gratification, with her consent. Swift J held:
"It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence, and when such an act is proved, consent is immaterial."
29. In Attorney-General’s Reference (No. 6 of 1980) ([1980] Queen’s Bench Reports, at 715) where two men quarrelled and decided to fight each other, Lord Lane CJ in the Court of Appeal had held:
"It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases."
30. In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125), where a man had been convicted of assault occasioning actual bodily harm for having branded his initials with a hot knife on his wife’s buttocks with her consent, the Court of Appeal, Criminal Division, allowed the appeal. In the course of the court’s judgment, Lord Justice Russell stated:
"... there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant ...
...
We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing ...
Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution."
31. Keeping a "disorderly house" is a common law offence. A disorderly house is defined as
"one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order. There must be an element of ‘open house’, but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment" ([1996] Archbold’s Criminal Pleading, Evidence and Practice 20, at 224).
NON_VIOLATED_ARTICLES: 8